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

[Robin Gross]

It didn't flow properly with the 2nd para totally removed.  So I took  
out the problematic part, but left the explanation of what TM+50 is.

Can we go with the following?:

>>> 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  
>>> unified regarding the 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.  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.


Thank you,
Robin


On Apr 10, 2013, at 2:06 AM, Alan Greenberg wrote:

> In light of this, I will propose the abbreviated version to the  
> ALAC (that is, the 1st and 3rd paragraph only).
>
> In light of the Council discussion that just happened, my  
> inclination is to recommend that we support the statement that I  
> think Jonathan will be making, specifically, that as the gTLD  
> policy body of ICANN, if the Board is to overrule the GNSO, they  
> are owed the courtesy of having a frank and open discussion on the  
> matter prior to finalizing any decision.
>
> Since I cannot predict which way the ALAC will go, I would suggest  
> that you have prepared for the open forum, the two paragraphs  
> mentioned above, as well as a fuller NCSG statement (recalling that  
> I understand that they will be enforcing a 2-minute limit on  
> speakers).
>
> Alan
>
> At 10/04/2013 04:15 AM, Robin Gross wrote:
>> Alan,
>>
>> We don't like the re-worked middle paragraph so let's remove it  
>> entirely.
>>
>> Thanks,
>> Robin
>>
>> On Apr 10, 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




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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