We should consider the options to file a request for reconsideration
with the board and / or an ombudsman complaint against staff for
violating ICANN's stated policy development process by adopting a
policy that the GNSO would not support when Fadi asked Council to
consider it.
Thanks,
Robin
Begin forwarded message:
> From: Robin Gross <[log in to unmask]>
> Date: April 10, 2013 11:52:12 AM PDT
> To: [log in to unmask]
> Subject: [NCSG-Discuss] Expanding scope of TM claims to TM+50 is a
> POLICY matter is still on the web
> Reply-To: Robin Gross <[log in to unmask]>
>
> Below is the blog post Fadi had to fix to admit expanding scope of
> TM claims was a POLICY matter. It is still on the web, but staff
> has provided no explanation as to how it gets to change GNSO POLICY
> that it admits is policy and not implementation.
>
> http://blog.icann.org/2012/11/a-follow-up-to-our-trademark-
> clearinghouse-meeti
> ngs/
>
>
>
> A Follow-Up to Our Trademark Clearinghouse Meetings
>
> by Fadi Chehadé on November 26, 2012
>
> To wrap up the series of meetings ICANN convened with stakeholders
> to find common ground on Trademark Clearinghouse implementation, we
> conducted a follow-up briefing today for the group who worked on
> these issues during our meetings in Brussels and Los Angeles.
>
> We discussed two items:
>
> 1. An update on the Trademark Clearinghouse contract, and
> 2. A way forward on the strawman solution developed during the
> meeting in Los Angeles.
>
> Contracts
>
> ICANN has continued to negotiate the agreements for database
> services with IBM and for validation services with Deloitte to
> include additional terms that will provide ICANN with maximum
> operational flexibility and guaranteed stewardship of the trademark
> database.
>
> Here is an overview:
>
> * ICANN retains all intellectual property rights in the
> Trademark Clearinghouse data.
> * Deloitte’s validation services are to be non-exclusive. ICANN
> may add additional validators after a threshold of minimum
> stability is met.
> * Trademark submission fees are capped at USD 150 per record.
> Discounts are available for bulk & multi-year submissions.
> * IBM will charge Deloitte for database access via an
> application processing interface (API), and will charge registries
> and registrars for real-time access to the database during the
> sunrise and claims periods.
> * ICANN may audit Deloitte’s performance (and revenues/costs)
> to confirm that the costs and fees for validation services are
> reasonable.
>
> We are moving to sign agreements as soon as possible and the
> agreements will be posted once signed.
>
> The "Strawman Solution"
>
> As promised, we reviewed each of the elements of the strawman
> solution to identify a way forward, paying special attention to
> determining whether each properly belonged in a policy or
> implementation process. We did not find that any element of the
> strawman was inconsistent with the policy advice from GNSO
> recommendation 3: Strings must not infringe the existing legal
> rights of others that are recognized or enforceable under generally
> accepted and internationally recognized principles of law. However,
> the analysis of the various elements yielded different recommended
> steps for consideration, as described below.
>
> * Sunrise Notice Requirement. Our analysis is that the addition
> of the required 30-day notice period for Sunrise falls clearly into
> the realm of implementation. The policy advice did not recommend
> specific time periods, and this is a reasonable means to help
> address the communications concerns of rights holders, especially
> in light of the high volume of gTLD applications.
> * Trademark Claims. The extension of Trademark Claims from 60
> to 90 days can also be considered implementation, as it is a matter
> of continuing a service that is already required. The addition of a
> “Claims 2” process could also fall into the category of
> implementation given that it is an optional, fee-based service for
> rights holders, and is more lightweight than what registries and
> registrars will have implemented in the Trademark Claims 1 period.
> This service is envisioned to benefit both consumers and trademark
> holders, and is consistent with the objectives of the Trademark
> Claims service developed by the community. To the extent that there
> are additional costs incurred by registries and registrars, I
> envision that these fees can be offset when the process is
> implemented, as a portion of the fees to be collected by IBM for
> this voluntary service are to be shared with registries and
> registrars.
> *
>
> Scope of Trademark Claims. The inclusion of strings
> previously found to be abusively registered in the Clearinghouse
> for purposes of Trademark Claims can be considered a policy matter.
> This proposal provides a path for associating a limited number of
> additional domain names with a trademark record, on the basis of a
> decision rendered under the UDRP or a court proceeding. Given the
> previous intensive discussions on the scope of protections
> associated with a Clearinghouse record, involving the IRT/STI, we
> believe this needs guidance from the GNSO Council.
>
> I wrote in the original version of this blog post: “the
> inclusion of strings previously found to be abusively registered in
> the Clearinghouse for purposes of Trademark Claims can be
> considered implementation, as it provides a path for associating a
> limited number of additional domain names with a trademark record.
> This is consistent with the policy advice that trademark rights
> should be protected, and, given that the inclusion of such names
> would be only on the basis of a decision rendered under the UDRP or
> a court proceeding, the process would merely take into account
> names for which the issues have already been balanced and
> considered. However, given the previous intensive discussions on
> the scope of protections associated with a Clearinghouse record,
> involving the IRT/STI, we believe this needs guidance from the GNSO
> Council.” This language appeared to create ambiguity as to the
> nature of the analysis, and has been updated as above.
>
> I will be sending a message to the GNSO Council asking it for
> guidance on the Scope of Trademark Claims. In addition, the
> strawman model will be posted this week for public comment. I am
> also including, along with the strawman model, a revised proposal
> from the BC/IPC for limited preventative registrations designed to
> address the need for second-level defensive registrations. Although
> this proposal is not currently part of the strawman model, I will
> be seeking guidance from the GNSO Council on this proposal as well.
>
> As a reminder, the strawman model was developed by participants
> selected by the respective stakeholder groups in the GNSO. I thank
> them for working with me to explore a balanced set of improvements
> to the TMCH and the rights protection mechanisms available for new
> gTLDs.
>
> I plan to convene this group one last time to discuss the outcome
> of planned contractual talks with IBM. I hope for this to happen
> later this week or next week.
>
> Sincerely,
> Fadi
>
>
>
>
>
>
>
> IP JUSTICE
> Robin Gross, Executive Director
> 1192 Haight Street, San Francisco, CA 94117 USA
> p: +1-415-553-6261 f: +1-415-462-6451
> w: http://www.ipjustice.org e: [log in to unmask]
>
>
>
IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA 94117 USA
p: +1-415-553-6261 f: +1-415-462-6451
w: http://www.ipjustice.org e: [log in to unmask]
|