Both! (Request for reconsideration AND ombudsman complaint.)


On Wed, Apr 10, 2013 at 3:12 PM, Robin Gross <[log in to unmask]> wrote:

> 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]
>
>
>
>


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