[PC-NCSG] my take on the TMCH mtg in LA

[joy]

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thanks Robin - an excellent summary and suggestions. And thanks to
Kathy as well for putting up such a good fight on this.
Robin - is it ok to share this with others eg colleagues in ccNSO?

Cheers
Joy

On 19/11/2012 11:42 a.m., Robin Gross wrote:
> Below is my report of the LA meeting and my recommendations for how
> the community should approach the issues moving forward.
> 
> Thanks much! Robin
> 
> 
> *The 11^th Hour Domain Name Trademark Policy Negotiations * *The
> Good, The Bad, and The Ugly ? Dissecting the Strawman* By Robin
> Gross
> 
> ICANN organized a meeting on 15-16 November 2012 in Los Angeles,
> the Trademark Clearinghouse policy negotiations, to consider the
> 8-points sent by the IPC-BC to the ICANN board and senior staff in
> a letter of 16 October 2012.  I participated in the policy meeting
> in person in LA on 15 November, and then for part of the discussion
> on 16 November via telephone.  Kathy Kleiman also participated in
> the discussion via telephone from DC for NCSG on the 15^th and the
> latter part of the 16th.  Below is my personal evaluation of the
> meeting and my initial reactions to the output of the meeting
> pending further discussion with the NCSG Policy Committee.
> 
> *The Good: Dangerous Blocking Proposal was Defeated*
> 
> The good news is that the most dangerous proposal was defeated.
> The IPC-BC?s proposal to block Internet domain name registrations
> based on trademarks was unequivocally rejected by the meeting
> participants. Given its absence of any support outside the IPC-BC
> proponents, the participants did not include the blocking mechanism
> as a possible policy at this time.
> 
> A wide range of participants objected to the registration blocking 
> proposal for a variety of reasons. Kathy raised strong procedural 
> concerns about introducing blocking after so much of ICANN?s time, 
> attention and energy had already been spent on a fervent debate on
> the topic.  She then raised the deep substantive concerns of
> allowing a trademark owner to reserve the right to block its
> trademark across all 1000+ new gTLDs, regardless of their
> applicability to the trademark?s registered categories of goods and
> services.  It?s a point that NCSG has been made many times, and one
> first developed by Kathy and Dr. Konstantinos Komaitis in 2008 in
> response to the GPML (Globally Protection Marks List).
> 
> Other members of the community also rejected the blocking policy 
> proposal.  Registries raised concerns about the blocking policy?s 
> presumption of guilt on the part of Internet users in contradiction
> to well-settled due process protections.  Registrars flagged the
> proposal?s danger to the health and growth of the Internet and
> reminded participants of the community?s responsibility to develop
> policies that do not cripple the Internet.  At-Large
> representatives also argued that the blocking proposal was an
> inappropriate policy change that should not be given immediate
> consideration. So the good news is that the dangerous domain name
> registration blocking proposal was stopped (for now).
> 
> *The Bad: A Strawman Based on a Stacked Deck*
> 
> The bad news is we seem to have policy proposals to address,
> ICANN?s ?strawman model? with possible new and additional
> concessions to be made to the IPC-BC at this late date.  ICANN
> staff?s output of this meeting, the strawman, should not be
> understood as something that participants agreed to, but is rather
> a discussion item for possible consideration based on executive
> decisions.  Some parts of the strawman are indeed technical
> implementation details or other non-changes to GNSO-approved 
> policy, and NCSG has no problem with those parts.  But other parts
> of the strawman do propose substantive changes to existing policy
> and should not be accepted by the community and allowed to
> over-ride the legitimate policy development process.
> 
> The strawman was discussed at the meeting many hours after the time
> that had been announced for policy discussions, and thus it was
> developed after many participants had already left the meeting
> (including me) to catch our flights back home on the 15th.  The
> imbalance of impacted-interests providing input into the strawman
> proposals (12 CSG representatives to 1 NCSG representative on the
> phone in the middle of night) must be taken into consideration in
> its evaluation.  A straw poll based on imbalanced inputs will
> obviously create imbalanced outputs.
> 
> Additionally, the strawman proposals could apply just as equally to
> .com as they would to the new domain names, so its impact could be
> of far greater significance than is generally understood at first
> blush.
> 
> *The Ugly: ICANN is Developing Policy Outside of Proper GNSO
> Process*
> 
> The most troubling concern is that the Intellectual Property and 
> Business Constituencies keep coming again and again to renegotiate
> the same policies.  Its further upsetting that ICANN then feels
> pressured to develop policy proposals in this inappropriate manner.
> We have to learn to respect the proper policy development process
> and the resulting policy compromises and consensus positions
> reached by the entire community.  Even ICANN staff said in L.A.
> that each of IPC-BC proposals being considered was a policy change
> for which some form of policy development process was appropriate.
> Yet somehow the proposals were still in play for negotiation and
> ultimately executive decision -- and ICANN staff did produce a new
> set of possible changes to the policy as currently stated in the
> Guidebook, the ?strawman model?.  Private negotiations among an
> imbalanced ad-hoc group to re-open well-settled policy matters is
> not the way to create legitimate policy, but it is developing
> policy.  And even though it could have been much worse ? the 
> blocking proposal could have been accepted ? the fact that ICANN
> has not learned it cannot make ad hoc policy changes outside of
> proper process is deeply troubling.
> 
> We have the same obligations to accountability to the community, 
> transparency of process, and equality of participation among
> impacted stakeholders in the development of policy at
> intercessional meetings that we have at other policy development
> meetings.  Neither executive decisions nor private negotiations
> among select parties fulfill ICANN?s commitment to the bottom-up
> multi-stakeholder policy development process.
> 
> *What Now?  Only Accept Strawman?s Technical Implementation
> Details* * * It is now up to the ICANN community to put this matter
> to bed and disregard those parts of the strawman model that re-open
> previously settled policy matters or attempt to create new
> policies, while accepting those outcomes that stayed true to the
> commitment that the meeting not create policy, and are genuinely
> only technical implementation details.
> 
> Expanding the scope of the trademark claims service to exact
> matches plus 50 variations of a trademark is a significant policy
> shift and expansion of trademark holders rights, which would
> require a legitimate policy development process to create.  Other
> big policy concessions to the IPC-BC in the strawman include the
> creation of a new ?Claims 2? policy, and policies to extend and
> increase the legal liability of domain name registrants against
> trademark claims.  The creation of entirely new policies that
> impact the rights and increase the risk for domain name registrants
> require a policy development process.  However, insubstantial
> increases in the duration of Trademark Claims or adding a 
> reasonable notice period to the Sunrise process are not terribly 
> problematic and would not require a PDP to implement.
> 
> Since the stawman is not the outcome of an agreed consensus that 
> permitted equal participation from all impacted stakeholders, the 
> strawman proposals cannot be said to over-ride the output of
> legitimate policy development and should only be considered for
> implementation where the model settles technical details and not
> policy matters. Dissection of the strawman proposals are necessary
> to sort-out true implementation from true policy.
> 
> 
> *_Specific Strawman Model Discussion Points & NCSG Initial
> Responses:_*
> 
> Point 1.  All new gTLD operators will publish the dates and
> requirements of their sunrise periods at least 30 days in advance.
> When combined with the existing (30-day) sunrise period, this
> supports the goal of enabling rights holders to anticipate and
> prepare for upcoming launches.
> 
> NCSG Response: No Problem.  Reasonable technical implementation
> detail to publish sunrise periods in advance.
> 
> Point 2.  A Trademark Claims period, as described in the Applicant 
> Guidebook, will take place for 90 days.  During this ?Claims 1?
> period, a person attempting to register a domain name matching a
> Clearinghouse record will be displayed a Claims notice (as included
> in the Applicant Guidebook) showing the relevant mark information,
> and must acknowledge the notice to proceed.  If the domain name is
> registered, the relevant rightsholders will receive notice of the
> registration.
> 
> NCSG Response: Some problem and some reasonable technical
> implementation detail.  The duration of the claims period is a
> change from what is stated in the Guidebook, which provides only 60
> days, but increasing to 90 days does not seem to be a significant
> substantive change.  However, requiring registrant to acknowledge
> receipt of notice creates legal liability for domain name
> registrants, so that part is a problematic policy change.
> 
> Point 3.  Rights holders will have the option to pay an additional
> fee for inclusion of a Clearinghouse record in a ?Claims 2? service
> where, for an additional 6-12 months, anyone attempting to register
> a domain name matching the record would be shown a Claims notice
> indicating that the name matches a record in the Clearinghouse (but
> not necessarily displaying the actual Claims data).  This notice
> will also provide a description of the rights and responsibilities
> of the registrant and will incorporate a form of educational add-on
> to help propagate information on the role of trademarks and develop
> more informed consumers in the registration process.
> 
> NCSG Response: NCSG objects to this entirely new policy created
> outside of the appropriate GNSO policy process.  Substantively,
> NCSG objects to this policy because it creates greater legal
> liability for Internet users who will be deemed to have received
> ?notice of infringement? for legal purposes upon sending of such
> additional notice.  Rights and responsibilities are not uniform
> globally and may cause confusion or misinformation, so any
> ?educational? value of additional notice does not match the
> significance of increased legal liability for registrants of 
> turning innocent infringers into knowingly and willful infringers.
> The imposition of criminal sanctions, additional monetary damages
> and other serious legal penalties are triggered for registrants who
> are sent such a notice and thus courts will deem them as having
> ?knowledge? of their infringement.  These non-trivial
> considerations must be worked through as part of a proper policy
> development process by the entire community. Creating an entirely
> new ?Claims 2? policy is a significant policy change that should go
> through a proper policy development process within the GNSO.
> 
> 
> Point 4.  Where there are domain labels that have been found to be
> the subject of previous abusive registrations (e.g., as a result of
> a UDRP or court proceeding), a limited number (up to 50) of these
> may be added to a Clearinghouse record (i.e., these names would be
> mapped to an existing record for which the trademark has already
> been verified by the Clearinghouse). Attempts to register these as
> domain names will generate the Claims notices as well as the
> notices to the rights holder.
> 
> NCSG Response:  NCSG objects to this major policy change as it 
> disregards the role of the GNSO as the policy development
> instrument at ICANN.  Substantively this policy change
> significantly expands trademark holders rights beyond what
> trademark law permits and beyond what is in the Guidebook.  The
> policy expands trademark holders rights at the expense of other
> legitimate interests, including all noncommercial speech.  Just
> because one party infringes a trademark does not mean that all
> subsequent uses of that word by other parties and in entirely 
> different contexts are presumed infringements, but this misguided
> policy does.  Creating a special list of trademarks, for which a
> single default would be sufficient for inclusion on it, is
> obviously a policy proposal requiring legitimate process to ensure
> all interests are considered. The proposal is also a significant
> policy change because it expands the scope of trademark claims from
> exact matches of a trademark to up to 50 variations.  That?s a big
> change to existing policy.  Criticism of brands and companies as
> will other types of noncommercial lawful uses of words in domain
> names would be chilled by this policy proposal.
> 
> Point 5.  Possible blocking mechanisms were discussed, but were
> not included in the strawman model.
> 
> NCSG Response: Agree with other participants that blocking of
> domain name registration based on trademarks as proposed by IPC-BC
> is dangerous to the health and growth of the Internet.  NCSG,
> Registrars, Registries and At-Large rejected the blocking mechanism
> from consideration in the strawman proposal after hours of
> relentless debate.  Obviously the creation of an entirely new
> blocking mechanism for domain names is a major policy change,
> inappropriate as an outcome of an informal and imbalanced meeting
> such as this, and was roundly rejected as such.
> 
> 
> 
> 
> 
> 
> 
> 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: robin at ipjustice.org 
> <mailto:robin at ipjustice.org>
> 
> 
> 
> 
> 
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