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] > > > > -- http://www.deepdishwavesofchange.org