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]