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

[David Cake]

If that is the only language that ALAC feels we can put in on policy problems with the TM+50 itself, we need to make it clearer that that issue is not the focus of our concern, and fixing it does not resolve our issue. If we make it appear that our concerns are focussed on the multiple registration issue, they can announce that they have fixed it in response to community concerns, and declare multistakeholder policy process has occurred. Certainly in NCSG (and the GNSO generally) we think this is one of many potential problems with this - for example, the assumption that an adverse URDP finding indicates an intrinsic problem with the string itself, ignoring product categories, etc. 

If there is so little specifically that we are able to agree on about what we dislike about the outcome, we should concentrate on our shared issues with the process. I'm in favour of removing the middle paragraph, or replacing it.


David



On 10/04/2013, at 1:34 PM, Alan Greenberg <alan.greenberg at mcgill.ca> wrote:

> Robin, the positions that ALAC took are surely partly what I have recommended at various times, and are partly strong views that others have had, so I would prefer to take the personification out of this, just as we do not refer to the positions that NCUC or NCSG put forward as "the positions that Robin encouraged them to take".
> 
> I will surely present the issue to ALAC, and as you have seen, Evan has had some second thoughts and he will surely contribute. But the bottom line is that we have a very short time and a very packed meeting tomorrow, and I am not at all sure that the outcome will be very different from what we have said before. That being said, I think that we will have quick closure on the 50 per mark instead of 50 per TMCH entry, because the is what we had originally envisioned, even if not stated.
> 
> Here is a statement that I believe covers the places where NCSG and ALAC currently have common ground. Please let me know if your think that this is acceptable, since we will need to get this out to the ALAC very quickly if we are to ratify it tomorrow morning.
> 
> Alan
> 
> =================
> 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.
> 
> To focus on one aspect of the new mechanisms, our communities are not unified on the overall 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. However, we are unified on one aspect. Companies that file for trademark registrations in many countries may have 50 additional strings per trademark per national registration. That would result in potentially thousands of additional strings per mark. Our communities are unified in that if this new protection should be implemented, it must be limited to 50 additional strings per mark without getting additional benefit from multiple registrations of the same mark in different jurisdictions.
> 
> 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.
> 
> At 10/04/2013 09:36 AM, Robin Gross wrote:
>> 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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