[PC-NCSG] proposed text for joint statement of ALAC & NCSG

[Robin Gross]

Alan,

I think we can agree to take out the substance, but it is unfortunate  
that you don't seem willing to re-examine the position you encouraged  
ALAC to previously adopt in light of the serious substantive problems  
with this proposal that have come to light since it was developed.

Thanks,
Robin


On Apr 8, 2013, at 8:41 PM, Alan Greenberg wrote:

> At 09/04/2013 12:45 PM, Robin Gross wrote:
>> Hi all,
>>
>> Below is the first draft of proposed text for a joint statement.   
>> Please propose edits to satisfy your concerns.  Let's get a  
>> statement on this important issue.
>>
>> Thanks!
>> Robin
>>
>>
>>
>> We are deeply concerned about the flawed process that led to the  
>> creation and adoption of the so-called strawman proposal for new  
>> gtld policy.   Despite assurances that staff would not create or  
>> alter community-developed policy, this proposal was adopted  
>> outside of the appropriate policy development process and goes  
>> well beyond implementation details and creates entirely new policy  
>> out of whole cloth.
>
> This gives the impression that the entire strawman proposal was  
> deemed by ALAC to be policy and needed GNSO involvement. That is  
> not the position that the ALAC has taken. The following text in my  
> mind would be acceptable.
>
> We are deeply concerned about the flawed process that led to the  
> creation and adoption of the so-called strawman proposal for new  
> gtld    rights protection mechanisms.  Despite assurances that  
> staff would not create or alter community-developed policy, some  
> aspects of this proposal were adopted outside of the appropriate  
> policy development processes.
>
>
>> In particular, we are concerned about the substance of the  
>> proposal known as "trademark + 50" which allows trademark owners  
>> to add their trademark plus 50 derivations of that mark for each  
>> trademark identifier into the TMCH, triggering the receipt of an  
>> infringement warning notice to registrants.   Since big companies  
>> file for trademark registrations in many countries, and each  
>> country's registration will entitle them to another 50 additional  
>> derivations of that word under this policy, thousands of words per  
>> trademark can actually trigger the warning notice for a single  
>> trademark of a large company.  This proposal presents a chilling  
>> effect on speech as some registrants will be intimidated about  
>> going forward with the registration even though they would be  
>> using that word lawfully.  Additionally, the receipt of one of  
>> these warning notices is legally significant as it will trigger  
>> criminal penalties for people who believe they are acting lawfully  
>> in the registration of a domain but are later determined to been  
>> in violation.
>
> This goes far further than any ALAC statement to date, and in fact  
> is counter to some ALAC positions. Perhaps the ALAC would want to  
> disavow such statements now, but that is not something that this  
> small drafting group has the mandate to do. I believe however, that  
> the ALAC would support (but would need formal approval) to limit  
> the extensions to 50 strings per unique mark and not per each  
> registration of the same mark. But to re-iterate, the ALAC has  
> objected to the PROCESS, not the substance of this proposal.
>
>
>> While we appreciate staff?s admission that this particular  
>> proposal was a policy issue and not an implementation detail, the  
>> explanations provided for the adoption of the policy that the GNSO  
>> Council did not support and that the ALAC deemed to require GNSO  
>> development have been woefully inadequate.  Circumvention of the  
>> bottom-up model is a serious issue that deserves attention and  
>> redress.  We call upon ICANN to reverse this trend and respect the  
>> community-led bottom-up multi-stakeholder policy development  
>> process that ICANN claims to champion.
>
> I added some words in Blue.
>
> Alan




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



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