[PC-NCSG] Is anyone there? We need your help pointing out a key fact that IPC is trying to sweep under the rug on GNSO Council list
Robin Gross
robin
Fri Apr 19 21:07:13 EEST 2013
Dear NCSG GNSO Councilors:
Please do not allow this (TM+50) issue to be portrayed as an
"implementation" issue as it currently is on the GNSO list. Staff
admitted TM+50 was a "policy matter that needed GNSO Council
guidance". Someone really needs to remind the council of this
important fact before the letter is sent claiming this is part of the
Implementation v Policy debate. Staff said it was a policy issue
needing GNSO guidance and when it got that guidance, it ignored that
guidance. One would think the GNSO Council would care to mention
that fact instead of pretending this just part of the "implementation
v. policy" debate.
We really need for an NCSG GNSO Councilor to point this key fact out
to the GNSO Council. Someone? Anyone? Please....
Thanks,
Robin
On Apr 16, 2013, at 6:45 PM, Robin Gross wrote:
> Dear NCSG GNSO Councilors:
>
> I notice on the GNSO Council mailing list discussion of sending the
> letter on TM+50 there remains some confusion as to whether staff
> considered this matter "policy" or "implementation". But that is
> not the issue! Please don't let them get away with this slight-of-
> hand trick.
>
> Below is the text where staff admitted TM+50 was a policy matter
> that needed GNSO Council guidance. So this isn't a case of staff
> calls something "implementation". Staff admitted this was "policy"
> and still provided no explanation for why/how it gets to change
> GNSO-approved policy. Would a GNSO Councilor please point this
> out to the council?
>
> This is NOT part of the policy v implementation debate. This is
> admitted policy and we need to remind council of this fact.
>
> Thank you,
> Robin
>
>
>
> Begin forwarded message:
>
>> From: Robin Gross <robin at IPJUSTICE.ORG>
>> Date: April 10, 2013 11:52:12 AM PDT
>> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
>> Subject: [NCSG-Discuss] Expanding scope of TM claims to TM+50 is a
>> POLICY matter is still on the web
>> Reply-To: Robin Gross <robin at IPJUSTICE.ORG>
>>
>> Below is the blog post Fadi had to fix to admit expanding scope of
>> TM claims was a POLICY matter. It is still on the web, but staff
>> has provided no explanation as to how it gets to change GNSO
>> POLICY that it admits is policy and not implementation.
>>
>> http://blog.icann.org/2012/11/a-follow-up-to-our-trademark-
>> clearinghouse-meetings/
>>
>>
>>
>> A Follow-Up to Our Trademark Clearinghouse Meetings
>>
>> by Fadi Chehad? on November 26, 2012
>>
>> To wrap up the series of meetings ICANN convened with stakeholders
>> to find common ground on Trademark Clearinghouse implementation,
>> we conducted a follow-up briefing today for the group who worked
>> on these issues during our meetings in Brussels and Los Angeles.
>>
>> We discussed two items:
>>
>> 1. An update on the Trademark Clearinghouse contract, and
>> 2. A way forward on the strawman solution developed during the
>> meeting in Los Angeles.
>>
>> Contracts
>>
>> ICANN has continued to negotiate the agreements for database
>> services with IBM and for validation services with Deloitte to
>> include additional terms that will provide ICANN with maximum
>> operational flexibility and guaranteed stewardship of the
>> trademark database.
>>
>> Here is an overview:
>>
>> * ICANN retains all intellectual property rights in the
>> Trademark Clearinghouse data.
>> * Deloitte?s validation services are to be non-exclusive.
>> ICANN may add additional validators after a threshold of minimum
>> stability is met.
>> * Trademark submission fees are capped at USD 150 per record.
>> Discounts are available for bulk & multi-year submissions.
>> * IBM will charge Deloitte for database access via an
>> application processing interface (API), and will charge registries
>> and registrars for real-time access to the database during the
>> sunrise and claims periods.
>> * ICANN may audit Deloitte?s performance (and revenues/costs)
>> to confirm that the costs and fees for validation services are
>> reasonable.
>>
>> We are moving to sign agreements as soon as possible and the
>> agreements will be posted once signed.
>>
>> The "Strawman Solution"
>>
>> As promised, we reviewed each of the elements of the strawman
>> solution to identify a way forward, paying special attention to
>> determining whether each properly belonged in a policy or
>> implementation process. We did not find that any element of the
>> strawman was inconsistent with the policy advice from GNSO
>> recommendation 3: Strings must not infringe the existing legal
>> rights of others that are recognized or enforceable under
>> generally accepted and internationally recognized principles of
>> law. However, the analysis of the various elements yielded
>> different recommended steps for consideration, as described below.
>>
>> * Sunrise Notice Requirement. Our analysis is that the
>> addition of the required 30-day notice period for Sunrise falls
>> clearly into the realm of implementation. The policy advice did
>> not recommend specific time periods, and this is a reasonable
>> means to help address the communications concerns of rights
>> holders, especially in light of the high volume of gTLD applications.
>> * Trademark Claims. The extension of Trademark Claims from 60
>> to 90 days can also be considered implementation, as it is a
>> matter of continuing a service that is already required. The
>> addition of a ?Claims 2? process could also fall into the category
>> of implementation given that it is an optional, fee-based service
>> for rights holders, and is more lightweight than what registries
>> and registrars will have implemented in the Trademark Claims 1
>> period. This service is envisioned to benefit both consumers and
>> trademark holders, and is consistent with the objectives of the
>> Trademark Claims service developed by the community. To the extent
>> that there are additional costs incurred by registries and
>> registrars, I envision that these fees can be offset when the
>> process is implemented, as a portion of the fees to be collected
>> by IBM for this voluntary service are to be shared with registries
>> and registrars.
>> *
>>
>> Scope of Trademark Claims. The inclusion of strings
>> previously found to be abusively registered in the Clearinghouse
>> for purposes of Trademark Claims can be considered a policy
>> matter. This proposal provides a path for associating a limited
>> number of additional domain names with a trademark record, on the
>> basis of a decision rendered under the UDRP or a court proceeding.
>> Given the previous intensive discussions on the scope of
>> protections associated with a Clearinghouse record, involving the
>> IRT/STI, we believe this needs guidance from the GNSO Council.
>>
>> I wrote in the original version of this blog post: ?the
>> inclusion of strings previously found to be abusively registered
>> in the Clearinghouse for purposes of Trademark Claims can be
>> considered implementation, as it provides a path for associating a
>> limited number of additional domain names with a trademark record.
>> This is consistent with the policy advice that trademark rights
>> should be protected, and, given that the inclusion of such names
>> would be only on the basis of a decision rendered under the UDRP
>> or a court proceeding, the process would merely take into account
>> names for which the issues have already been balanced and
>> considered. However, given the previous intensive discussions on
>> the scope of protections associated with a Clearinghouse record,
>> involving the IRT/STI, we believe this needs guidance from the
>> GNSO Council.? This language appeared to create ambiguity as to
>> the nature of the analysis, and has been updated as above.
>>
>> I will be sending a message to the GNSO Council asking it for
>> guidance on the Scope of Trademark Claims. In addition, the
>> strawman model will be posted this week for public comment. I am
>> also including, along with the strawman model, a revised proposal
>> from the BC/IPC for limited preventative registrations designed to
>> address the need for second-level defensive registrations.
>> Although this proposal is not currently part of the strawman
>> model, I will be seeking guidance from the GNSO Council on this
>> proposal as well.
>>
>> As a reminder, the strawman model was developed by participants
>> selected by the respective stakeholder groups in the GNSO. I thank
>> them for working with me to explore a balanced set of improvements
>> to the TMCH and the rights protection mechanisms available for new
>> gTLDs.
>>
>> I plan to convene this group one last time to discuss the outcome
>> of planned contractual talks with IBM. I hope for this to happen
>> later this week or next week.
>>
>> Sincerely,
>> Fadi
>>
>>
>>
>>
>>
>>
>>
>> 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
>
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
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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