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

Avri Doria avri
Thu Apr 11 04:19:26 EEST 2013


Hi,

As a member of the NCSG-PC I indicated that I was against a joint statement that included discussion of disagreements. If we don't have enough agreement for a joint statement, we should not send a joint statement.


Robin Gross <robin at ipjustice.org> wrote:

>Alan,
>
>A joint statement should not say where we disagree.  A joint stmt  
>should focus only on what we agree - process for creating TM+50 is  
>flawed.    Add the word "process" another place to clarify if you  
>think it isn't clear.
>
>Thanks,
>Robin
>
>On Apr 10, 2013, at 3:33 AM, Alan Greenberg wrote:
>
>> Robin, you changed:
>>
>> "...our communities are not unified on the overall substance of the  
>> proposal known as "trademark + 50" which allows..."
>>
>> to
>>
>> "...our communities are unified regarding the the proposal known as  
>> "trademark + 50" which allows..."
>>
>> Ignoring the duplicate "the" typo, changing "are not unified" to  
>> "are unified" is not a trivial change.
>>
>> I am not permitted to send you the NCSG PC list. I presume you will  
>> forward my mail.
>>
>> Alan
>>
>> At 10/04/2013 08:41 PM, Robin Gross wrote:
>>> 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
>>>
>
>
>
>
>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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Avri Doria
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