[PC-NCSG] Fwd: [NCSG-Discuss] Should NCSG consider filing an ombudsman complaint against ICANN senior staff for violating the organization's policy development process?

[Robin Gross]

Do we have a couple GNSO Councilors who are willing to take this  
issue up and coordinate with colleagues in other SG's to garner the  
necessary GNSO-wide support needed to make this motion succeed?    
(Obviously CSG won't go for it 'cuz it creates new rights for them,  
but if Ry and Rr do, we may have something).

Your efforts would be much appreciated - and could have a big impact  
in protecting the bottom-up model. Thanks!

Best,
Robin

Begin forwarded message:

> From: Mary.Wong at LAW.UNH.EDU
> Date: March 26, 2013 12:28:14 PM PDT
> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
> Subject: Re: [NCSG-Discuss] Should NCSG consider filing an  
> ombudsman complaint against ICANN senior staff for violating the  
> organization's policy development process?
> Reply-To: Mary.Wong at LAW.UNH.EDU
>
> I agree that the Council would be the appropriate filer in this  
> case. As I mentioned in a different message, there seems to be a  
> pattern that decisions are being made outside the GNSO policy  
> processes - although that may be proven to not be the case in one  
> or more of the instances we've discussed on this list. In any event  
> I think it would be useful and appropriate for the Council to  
> discuss this directly, and hope our Councilors can support this  
> action. It seems to me also that before introducing the motion it  
> may be worth investigating whether a Councilor from a different SG/ 
> House would be prepared to second it.
>
> Cheers
> Mary
>
>
> Mary W S Wong
> Professor of Law
> Faculty Chair, Global IP Partnerships
> Chair, Graduate IP Programs
> UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
> Two White Street
> Concord, NH 03301
> USA
> Email: mary.wong at law.unh.edu
> Phone: 1-603-513-5143
> Webpage: http://www.law.unh.edu/marywong/index.php
>
>
> >>>
> From:
> Avri Doria <avri at ACM.ORG>
> To:
> <NCSG-DISCUSS at LISTSERV.SYR.EDU>
> Date:
> 3/26/2013 3:23 PM
> Subject:
> Re: [NCSG-Discuss] Should NCSG consider filing an ombudsman  
> complaint against ICANN senior staff for violating the  
> organization's policy development process?
> Hi
>
> I can support the NCSG filling such a complaint, though it would be  
> better for the GNSO Council to file it.
>
> Perhaps we can first introduce it as a motion for the next g- 
> council meeting, and if the council decides against it, then we  
> could do it independently.
>
> avri
>
> On 26 Mar 2013, at 15:14, Robin Gross wrote:
>
> > I think NCSG should consider filing an ombudsman complaint  
> against the organization's senior management for violating the  
> organization's policy development process by adopting staff's  
> "strawman solution" which never went through proper process (or any  
> process for that matter).
> >
> > The most dangerous part of staff's adopted proposal creates  
> unprecedented new rights for trademark holders with this "once  
> infringed" theory of new rights to TM+50 derivations of that mark.   
> This particular proposal was stitched together by TM lobbyists and  
> staff when NCSG wasn't even in the room - because it was 10pm at  
> night in LA and I had left for my flight on staff's assurances that  
> no policy discussions would take place that evening.  ALAC wasn't  
> in the room either (although Evan & Alan participated remotely on  
> the phone in the middle of their night).
> >
> > The GNSO Council said don't adopt this policy.
> >
> > ICANN staff admitted the proposal was a policy decision and not  
> an implementation decision - a key distinction in staff's ability  
> to make decisions. [Although the first time staff published its  
> report on the mtg's discussion of that proposal, staff's blog  
> report differed from what the CEO stated to meeting participants  
> and said this proposal had been characterized as an  
> "implementation" decision by mtg participants.  It took some  
> persistence and insistence from mtg participants to correct staff's  
> blog post and classify this proposal as "policy" - which was the  
> truth of what the LA mtg participants had said.  Finally staff gave- 
> in, as I was not the only one to complain about the inaccurate  
> reporting, and they changed the web-posting to reflect that the  
> group - and staff - had classified this proposal as "policy, and  
> not implementation" at the LA mtg.  The CEO apologize for staff's  
> "mistake".  I'm sure it's all another coincidence...]
> >
> > The CEO told Congress only a few weeks' previously that ICANN  
> could not adopt such a policy - in part because it creates new  
> rights (and ICANN isn't supposed to creating new rights).
> >
> > The above doesn't even go into the underlying substance of the  
> particular (TM+50) proposal (which turns trademark law on its  
> head).  How is anyone going to criticize a company or product that  
> was "found to abused" by someone else, somewhere else, in an  
> entirely unrelated circumstance?  This proposal actually thumbs its  
> nose at trademark law because trademark law recognizes that "once  
> infringed" does not create some magical new category of rights that  
> is allowed to trample on the expression rights of all the innocent  
> and lawful uses of a word (that resembles a trademark).  But I'll  
> save the complaints about how nonsensical the substance of this  
> proposal is for another email.  This email is just about the  
> insanity of ICANN senior staff attempting to usurp the bottom-up  
> policy development process to appease powerful political interests.
> >
> > If ICANN staff refuses to follow the organization's own stated  
> policies, the Ombudsman is supposed to be able to intercede, no?
> >
> > Best,
> > Robin
> >
> >
> > 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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