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]