Begin forwarded message:

From: Robin Gross <[log in to unmask]>
Date: April 10, 2013 11:06:54 AM PDT
To: Fadi Chehade <[log in to unmask]>
Cc: Mike O'Connor <[log in to unmask]>, James Bladel <[log in to unmask]>, Jeff Eckhaus <[log in to unmask]>, Antony Van Couvering <[log in to unmask]>, BretFausett Fausett <[log in to unmask]>, Alan Greenberg <[log in to unmask]>, BenAnderson Anderson <[log in to unmask]>, Chris Wright <[log in to unmask]>, ElisaCooper Cooper <[log in to unmask]>, "[log in to unmask] Leibovitch" <[log in to unmask]>, Fred Felman <[log in to unmask]>, Gustavo Lozano <[log in to unmask]>, "[log in to unmask] Neuman" <[log in to unmask]>, Jim Waldron <[log in to unmask]>, Jon Nevett <[log in to unmask]>, Jonathan Robinson <[log in to unmask]>, KathyKleiman <[log in to unmask]>, Kathryn Park <[log in to unmask]>, Konstantine Komaitis <[log in to unmask]>, Martin Sutton <[log in to unmask]>, Matt Serlin <[log in to unmask]>, Wendy Seltzer <[log in to unmask]>, [log in to unmask], [log in to unmask]
Subject: what happened to your blog post that admitted expanding the scope of TM claims was a POLICY matter???  It appears to be removed from the web.

Dear Fadi,

What happened to your ICANN blog post where you had to change your characterization of our LA meeting to the following?:

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.


It appears this blog post and key language is gone from the web now.  Did staff subsequently decide to change its mind again and claim we said this was merely an implementation matter?   

Thanks,
Robin


On Dec 4, 2012, at 1:57 PM, Fadi Chehade wrote:

Colleagues,

I will address this as soon as I return from the WCIT.  Thanks four your patience.

BTW - Some of the issues addressed in this conference may have a profound impact on the net as we know it. Let's hope for the best.

Fadi

On Dec 5, 2012, at 1:37 AM, "Robin Gross" <[log in to unmask]> wrote:

Dear Karen, Fadi and all:

I noticed that yesterday's update of staff's strawman solution still includes the proposal to expand the scope of trademark claims to so-called abused TMs+50, even though we were told in last Monday's call that that specific proposal was "deemed policy" and therefore outside the scope of what can be proposed without a proper policy process.  

We were told we would not be creating new policies with these discussions, but that is what this particular proposal is (and it even now is classified as "policy" on the web) so it does not belong in the strawman proposal.  

Perhaps it is a coincidence or accident, but it seems the goal posts are shifting by staff and we deserve an explanation for how this policy could have been developed in this fashion and been included by staff in its strawman, given ICANN's stated commitment to following its own bottom-up policy development processes and given what we were told in the discussions.

I've had a number of NCSG members ask for access to the transcripts / recordings of these policy discussions, so would also very much appreciate it if someone from staff would get back to me on that request.  Thank you.

Sincerely,
Robin

On Nov 30, 2012, at 11:46 PM, Robin Gross wrote:

Thanks for correcting the ICANN blog, Karen.  But the language is still the same in the actual strawman proposal posted for public comment (this proposal is still called "implementation" rather than classified as "policy"), so that should be corrected too, as it is ICANN's official announcement.

But how did this particular proposal, which is policy, find it's way into the 'strawman solution' which states it doesn't delve into policy and that it doesn't contradict GNSO policy?  That seems to be a mistake in need of correcting quickly.

I'm additionally concerned that this strawman and ICANN's announcement give the impression that the strawman was some kind of negotiated consensus from the community.  The strawman should clarify that it is a series of executive decisions made by ICANN staff.  It really isn't fair to characterize this proposal as coming from meeting participants.  It is a staff proposal and should be honestly labeled as such.

Thank you,
Robin

On Nov 30, 2012, at 4:44 PM, Karen Lentz <[log in to unmask]> wrote:

Dear colleagues,

 

It seems the language in the blog posting may have been confusing, and we apologize for this.  The intention was to indicate that the involvement of the GNSO is appropriate due to the policy considerations.  The blog post has been updated as below with a note of clarification to address the ambiguity in the reference to this.

 

=

 

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.

 

Best regards,

 

Karen Lentz

ICANN

 

From: Mike O'Connor [mailto:[log in to unmask]]
Sent: Friday, November 30, 2012 2:00 PM
To: James M. Bladel
Cc: Jeff Eckhaus; Antony Van Couvering; Karen Lentz; Robin Gross; Fadi Chehade; Marilyn Cade; Bret Fausett; Alan Greenberg; Ben Anderson; Bryce Coughlin; Chris Wright; Elisa Cooper; [log in to unmask]; Fabricio Vayra; Fred Felman; Gerald Depardo; Gustavo Lozano; J. Scott Evans; [log in to unmask]; Jim Waldron; [log in to unmask]; Jon Nevett; Jonathan Robinson; Kathy Kleinman; Kathy Kleiman; Kathryn Park; Konstantine Komaitis; Kristina Rosette; Martin Sutton; Matt Serlin; [log in to unmask]; Susan K; Steve Metalitz; Steve Delbianco; Tony Holmes; [log in to unmask]; [log in to unmask]; Wendy Seltzer; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; Francisco Arias; Akram Atallah; Christine Willett; Margie Milam; John Jeffrey; David Olive
Subject: Re: follow up/and scheduling

 

hi all,

 

i was a little surprised to see this on in the "implementation" pile as well.  here are my notes from that section of the call.  sorry they're so sketchy.  the call was not recorded (which i think we should change in the future but that's above my pay grade).

 

Scope of TM claims

  • conflicts with STI
  • "identical match" question
  • expands the scope beyond what is recommended by STI
  • +- "timeline visibility" from ICANN may help with that
    •  
    • reduced prices for typos - like .NU
  • +- proposes limit of 50
    • not found in STI discussion
    • +- things that have been known to be abusively registrered
      • UDRP, court record, NOT URS
  • GNSO Council to give advice  

 

On Nov 30, 2012, at 3:56 PM, "James M. Bladel" <[log in to unmask]> wrote:



I share the concerns raised by Jeff, Robin and others, and believe there would be value in seeing how Fadi / Staff arrived at this determination.


Thanks--


J.

 

-------- Original Message --------
Subject: Re: follow up/and scheduling
From: Jeff Eckhaus <[log in to unmask]>
Date: Fri, November 30, 2012 3:47 pm
To: Antony Van Couvering <[log in to unmask]>, Karen Lentz
<[log in to unmask]>
Cc: Robin Gross <[log in to unmask]>, Fadi Chehade
<[log in to unmask]>, Marilyn Cade <[log in to unmask]>, Bret
Fausett <[log in to unmask]>, Alan Greenberg <[log in to unmask]>,
Ben Anderson <[log in to unmask]>, Bryce Coughlin
<[log in to unmask]>, Chris Wright <[log in to unmask]>, Elisa
Cooper <[log in to unmask]>, "[log in to unmask]"
<[log in to unmask]>, Fabricio Vayra <[log in to unmask]>, Fred
Felman <[log in to unmask]>, Gerald Depardo
<[log in to unmask]>, Gustavo Lozano <[log in to unmask]>, "J.
Scott Evans" <[log in to unmask]>, James Bladel
<[log in to unmask]>, "[log in to unmask]"
<[log in to unmask]>, Jim Waldron <[log in to unmask]>,
"[log in to unmask]" <[log in to unmask]>, Jon Nevett
<[log in to unmask]>, Jonathan Robinson <[log in to unmask]>,
Kathy Kleinman <[log in to unmask]>, Kathy Kleiman
<[log in to unmask]>, Kathryn Park <[log in to unmask]>,
Konstantine Komaitis <[log in to unmask]>, Kristina Rosette
<[log in to unmask]>, Martin Sutton <[log in to unmask]>, Matt Serlin
<[log in to unmask]>, Mike O'Connor <[log in to unmask]>,
"[log in to unmask]" <[log in to unmask]>, Susan K
<[log in to unmask]>, Steve Metalitz <[log in to unmask]>, Steve Delbianco
<[log in to unmask]>, Tony Holmes <[log in to unmask]>,
"[log in to unmask]" <[log in to unmask]>, "[log in to unmask]"
<[log in to unmask]>, Wendy Seltzer <[log in to unmask]>,
"[log in to unmask]" <[log in to unmask]>, "[log in to unmask]"
<[log in to unmask]>, "[log in to unmask]"
<[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>,
Francisco Arias <[log in to unmask]>, Akram Atallah
<[log in to unmask]>, Christine Willett
<[log in to unmask]>, Margie Milam <[log in to unmask]>,
John Jeffrey <[log in to unmask]>, David Olive
<[log in to unmask]>

Karen,

 

A follow-up to Robin's and Antony's message on this topic and maybe the same question.  You stated that you believed that this third term  was consistent with the policy and thus considered implementation. I still would like to see the rationale behind the decision that this is considered the policy, and really what policy is this consistent with? It is very unclear and I think that a document that explains the policy and the thought process behind it would be very helpful. Also maybe if you could tie it into the slide that Margie put up on the screen on what is considered policy , that would be a big help

 

Thanks

 

Jeff

 

 

 

From: Antony Van Couvering <[log in to unmask]>
To: Karen Lentz <[log in to unmask]>
Cc: Robin Gross <[log in to unmask]>, Fadi Chehade <[log in to unmask]>, Jeffrey Eckhaus <[log in to unmask]>, Marilyn Cade <[log in to unmask]>, Bret Fausett <[log in to unmask]>, Alan Greenberg <[log in to unmask]>, Ben Anderson <[log in to unmask]>, Bryce Coughlin <[log in to unmask]>, Chris Wright <[log in to unmask]>, Elisa Cooper <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, Fabricio Vayra <[log in to unmask]>, Fred Felman <[log in to unmask]>, Gerald Depardo <[log in to unmask]>, Gustavo Lozano <[log in to unmask]>, "J. Scott Evans" <[log in to unmask]>, James Bladel <[log in to unmask]>, Jeff Neuman <[log in to unmask]>, "'Waldron, Joe'" <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, Jon Nevett <[log in to unmask]>, Jonathan Robinson <[log in to unmask]>, Kathy Kleinman <[log in to unmask]>, Kathy Kleiman <[log in to unmask]>, Kathryn Park <[log in to unmask]>, Konstantine Komaitis <[log in to unmask]>, Kristina Rosette <[log in to unmask]>, Martin Sutton <[log in to unmask]>, Matt Serlin <[log in to unmask]>, Mike O'Connor <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, Susan K <[log in to unmask]>, Steve Metalitz <[log in to unmask]>, Steve Delbianco <[log in to unmask]>, Tony Holmes <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, Wendy Seltzer <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, Francisco Arias <[log in to unmask]>, Akram Atallah <[log in to unmask]>, Christine Willett <[log in to unmask]>, Margie Milam <[log in to unmask]>, John Jeffrey <[log in to unmask]>, David Olive <[log in to unmask]>
Subject: Re: follow up/and scheduling

 

Hi Karen,

 

Thanks for the clarification. I had a question very similar to Robin's, so I'm glad she asked it.

 

Clearly anything that treats of protecting intellectual property rights is "consistent" with existing policy, and hence from one perspective almost any measure, no matter how extreme, could be considered implementation. 

 

I would have hoped, however, that had progressed beyond such niceties.  Fadi very clearly said during our meeting that he was "not comfortable" calling this an implementation detail and that it was "clearly" a policy matter, and so Robin was not the only one to have been startled to find the opposite emphasis in the blog post.  Unfortunately these ambiguities tend the fray the trust that Fadi has worked so hard to build.

 

On another note, I see that the comment forum is up at the link you provided, but there is no link to the proposal itself. 

 

With best regards,

 

Antony

 

 

On Nov 30, 2012, at 12:14 PM, Karen Lentz wrote:



Robin,

 

Thank you for your message.  If I can offer some clarification:  on Monday’s call we discussed this third item (inclusion of strings previously found to have been abusively registered or used) as something that is consistent with the policy and could be considered  implementation.  However, given the work of the STI and the number of discussions held on this in the past, we were not comfortable proceeding without the guidance of the GNSO council.  This is also what is stated in the blog, so there is no change from the position on the call. 

 

Also, FYI, as discussed on Monday, the strawman is posted for public comment, and can be found here:  http://www.icann.org/en/news/public-comment/tmch-strawman-30nov12-en.htm

Best regards,

 

Karen Lentz

ICANN

 

 

From: Robin Gross [mailto:[log in to unmask]] 
Sent: Friday, November 30, 2012 9:59 AM
To: Fadi Chehade
Cc: Jeff Eckhaus; Marilyn Cade; Bret Fausett; [log in to unmask]; Alan Greenberg; Ben Anderson; Bryce Coughlin; Chris Wright; Elisa Cooper; [log in to unmask]; Fabricio Vayra; Fred Felman; Gerald Depardo; Gustavo Lozano; J. Scott Evans; James Bladel; [log in to unmask]; Jim Waldron; [log in to unmask]; Jon Nevett; Jonathan Robinson; Kathy Kleinman; Kathy Kleiman; Kathryn Park; Konstantine Komaitis; Kristina Rosette; Martin Sutton; Matt Serlin; Mike O'Connor; [log in to unmask]; Susan K; Steve Metalitz; Steve Delbianco; Tony Holmes; [log in to unmask];[log in to unmask]; Wendy Seltzer; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; Karen Lentz; Francisco Arias; Akram Atallah; Christine Willett; Margie Milam; John Jeffrey; David Olive
Subject: Re: follow up/and scheduling

 

Dear Fadi,

 

Thank you for the update.  However, I'm confused about something the blog report of the meeting states because it differs from my understanding of Monday's conversation on the issue, so I was hoping you could clarify the issue.

 

I thought you had said on Monday's call that the proposal to expand the scope of trademark claims to so-called abused TM's+50 was "deemed policy" by staff, a position with which many of us agree.  

 

However in this week's blog report about the meeting, it states under the Scope of Trademark Claims issue that expanding claims to so-called abused TMs+50 "can be considered implementation..." - an interpretation with significantly different ramifications.  

 

Has staff shifted its view from Monday's call on this issue and no longer considers expanding the scope of TM claims to be a policy matter, but is now deemed to be an implementation issue instead?  I think a number of us on the call would have objected at that time had we been told staff was going to deem this particular proposal as implementation (as opposed to policy) because the creation of this new policy out of whole cloth presents serious impacts to many stakeholders and requires a legitimate policy development process to sort through them.  

 

Could you please clarify staff's apparent re-classification of this proposal as implementation since Monday's call, as that classification bears significant ramifications?

 

Thank you,

Robin

 

 

On Nov 29, 2012, at 3:17 PM, Fadi Chehade wrote:




Colleagues,

 

With regret, we are not ready to have a call tomorrow. Our contract negotiations are ongoing and we are likely to need another week to finalize with IBM. My sincere apologies. 

 

Cassia- please setup our last informational call for this group at 8am on Tuesday December 11. 

 

Thanks in advance to all of you and apologies for the delay. 

 

Best

Fadi


On Nov 29, 2012, at 2:03 PM, "Jeff Eckhaus" <[log in to unmask]> wrote:

I agree a call may be difficult , but hope that one of the agreed upon asks I had from the call could be followed up via email. I had asked and Fadi agreed to send  the rationale and the supporting documentation that led to the ICANN decision that the mandatory Claims 2, is an implementation decision and not a policy decision. 

 

 

Thanks

 

Jeff

 

 

 

 

 

From: Marilyn Cade <[log in to unmask]>
To: Bret Fausett <[log in to unmask]>, Fadi Chehade <[log in to unmask]>, Antony Van Couvering <[log in to unmask]>, Alan Greenberg <[log in to unmask]>, Ben Anderson <[log in to unmask]>, Bryce Coughlin <[log in to unmask]>, Chris Wright <[log in to unmask]>, Elisa Cooper <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, Fabricio Vayra <[log in to unmask]>, Fred Felman <[log in to unmask]>, Gerald Depardo <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, "J. Scott Evans" <[log in to unmask]>, James Bladel <[log in to unmask]>, Jeffrey Eckhaus <[log in to unmask]>, Jeff Neuman <[log in to unmask]>, "'Waldron, Joe'" <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, Jon Nevett <[log in to unmask]>, Jonathan Robinson <[log in to unmask]>, Kathy Kleinman <[log in to unmask]>, Kathy Kleiman <[log in to unmask]>, Kathryn Park <[log in to unmask]>, Konstantine Komaitis <[log in to unmask]>, Kristina Rosette <[log in to unmask]>, Martin Sutton <[log in to unmask]>, Matt Serlin <[log in to unmask]>, Mike O'Connor <[log in to unmask]>, Robin Gross <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, Susan K <[log in to unmask]>, Steve Metalitz <[log in to unmask]>, Steve Delbianco <[log in to unmask]>, Tony Holmes <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, Wendy Seltzer <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>, "[log in to unmask]" <[log in to unmask]>
Cc: Karen Lentz <[log in to unmask]>, Francisco Arias <[log in to unmask]>, Akram Atallah <[log in to unmask]>, Christine Willett <[log in to unmask]>, Margie Milam <[log in to unmask]>, John Jeffrey <[log in to unmask]>, David Olive <[log in to unmask]>
Subject: follow up/and scheduling

 

Status request: 

At this point, as I am traveling to Dubai for ITU WCIT, my Friday is extremely limited in availability. I can only do a call from 1-3 p.m  due to travel and previous commitments, but 

of more importance is that short notice prevents all of us to plan. But that is only an illustration of how hard it is to schedule on short notice. I suspect/expect others are more limited than I am! 

 

 

A call next week will fall while I am in Dubai, and I see at least one other person from this group also there. 

 

Can we have a few days notice, and some time slots, so that all of us can plan accordingly to ensure that we can participate? 

 

Marilyn Cade

From: [log in to unmask]
To: [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask];[log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask];[log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask];[log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask];[log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask];[log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask];[log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]
CC: [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask]; [log in to unmask];[log in to unmask]
Date: Thu, 29 Nov 2012 15:36:34 -0600
Subject: Re: Monday Informational Call

Just following up on this. If I recall correctly, we were looking at a follow-up call tomorrow (Friday, Nov. 30th)? Just want to make sure I didn't miss something. Please let me know if plans have changed.

 

Kind regards,

 

           Bret

 

--

Bret Fausett, Esq.
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IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
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IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451







IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
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