LA Straw (Man)

 

Straw man >n. a person compared to a straw image; a sham.

  • ·         a sham argument set up to be defeated.

— The New Oxford American Dictionary

 

Last Thursday and Friday, November 15th & 16th, representatives from the various constituencies comprising ICANN’s Generic Names Supporting Organization (GNSO) met at ICANN headquarters in Los Angles to discuss various aspects of Trademark Clearinghouse TMCH) implementation as well as the eight recommendations for rights protection mechanism (RPM) “enhancements” developed by the Business and Intellectual Property Constituencies (see http://internetcommerce.org/DN_Registration_Prior_Restraint , http://internetcommerce.org/NTAG_RrSG_Oppose_RPMs , http://internetcommerce.org/Chehade_Explains_BRU , and http://internetcommerce.org/NCSG_Blasts_RPMs for prior ICA posts on these recommendations) .

However, this was not an official GNSO meeting. Attendance was by invitation-only, with no remote participation available to interested parties liable to be affected by the deliberations notwithstanding ICANN’s professed commitment to transparency – in fact, attendees were reportedly told that they could not Tweet or otherwise communicate about the discussions as they took place. While discussion of the BC/IPC recommendations was officially slated for just a few hours on Thursday morning that dialogue reportedly stretched well into Thursday night as well as Friday, with some participants reportedly forced to leave despite having more to say because of prior travel arrangements made in reliance of the official schedule. In short, if traditional GNSO meetings and the policy development process (PDP) are considered regular order, then this ad hoc meeting was very much irregular order.  

ICANN CEO Fadi Chehade subsequently posted a blog report on the meeting (http://blog.icann.org/2012/11/trademark-clearinghouse-update/) that maintains that participants “focused strictly on finding common ground and to advance the discussion on implementation solutions; they were not policy-making meetings” (emphasis added). While we hesitate to disagree, ICA and many of the participating constituencies had previously made abundantly clear that in their view many of the eight recommendations constituted very substantial and in some instances brand new policy alterations  and initiatives, not mere implementation details.

He also states that “For this meeting, the group decided to focus primarily on finding the right solutions, and then later to address how the solutions should be considered, adopted, or implemented.” In other words, this irregular procedure aimed first to produce proposed “solutions”, and only after that work is done will it try to fashion another ad hoc procedure for their consideration by the broader ICANN community. This leaves everyone guessing at the next step.

Lastly, he also notes that “The group discussed a possible decision tree as a tool for considering whether proposed changes were appropriate for policy or implementation processes.” Which, in our view, has it exactly backwards – as the decision should have been made in advance whether a particular change was mere implementation suitable for current discussion, or a policy change requiring the normal, thorough PDP approach.

While we appreciate much about CEO Chehade’s hands on approach, and are clearly witnessing ICANN’s generally positive transition from starfish to spider management mode, we’d counsel caution as this web-weaving continues. We’re fast approaching a December WCIT meeting in Dubai in which Russia and other nations will apparently be demanding a transfer of the majority of ICANN’s DNS functions to the International telecommunications Union (ITU) (see http://news.cnet.com/8301-13578_3-57551442-38/russia-demands-broad-un-role-in-net-governance-leak-reveals/ ). Defenders of ICANN’s multi-stakeholder model are not helped in making their case when ICANN sharply departs from established procedures for policy development to ad hoc experiments that consist of promulgating “solutions” and then fashioning procedures on-the-fly for their further consideration.

In our view, a shared community understanding of what the policy and procedural rules are, and adherence to them as well as delivery on commitments to transparency and accountability, is the glue that holds ICANN’s diverse multiplicity of stakeholders together. And they are set aside at ICANN’s ultimate peril.

The blog post goes on to posit a “Strawman Model” for five of the eight BC/IPC items. Two proposal items that caught our eye in particular were:

A Trademark Claims period, as described in the Applicant Guidebook, will take place for 90 days. During this “Claims 1″ period, a person attempting to register a domain name matching a Clearinghouse record will be displayed a Claims notice (as included in the Applicant Guidebook) showing the relevant mark information, and must acknowledge the notice to proceed. If the domain name is registered, the relevant rightsholders will receive notice of the registration.

and

Where there are domain labels that have been found to be the subject of previous abusive registrations (e.g., as a result of a UDRP or court proceeding), a limited number (up to 50) of these may be added to a Clearinghouse record (i.e., these names would be mapped to an existing record for which the trademark has already been verified by the Clearinghouse). Attempts to register these as domain names will generate the Claims notices as well as the notices to the rights holder.

We are concerned that this latter proposal, if eventually implemented through whatever procedure is created out of whole cloth to facilitate community consideration of the Model, will convert the TMCH from a  reliable repository of verified trademarks into something much less useful — and also makes the mistake of assuming that a UDRP loss of a domain at an incumbent gTLD automatica
lly translates into potential infringement if registered at one of the hundreds of new and very vertically specific labeled new gTLDs. Further, while the fifty additional listings might consist in part of typographical variations of trademarks, they could just as easily consist of the trademark plus a generic term.

More importantly, both of the proposals are at direct odds with a letter sent by CEO Chehade to US Congressional leaders just two months ago, (http://www.icann.org/en/news/correspondence/chehade-to-leahy-et-al-19sep12-en) in which he stated:

For the first round of new gTLDs, ICANN is not in a position to unilaterally require today an extension of the 60-day minimum length of the trademark claims service. The 60-day period was reached through a multi-year, extensive process within the ICANN community.

and

It is important to note that the Trademark Clearinghouse is intended as a repository for existing legal rights, and not an adjudicator of such rights or creator of new rights. Extending the protections offered through the Trademark Clearinghouse to any form of name (such as the mark + generic term suggested in your letter) would potentially expand rights beyond those granted under trademark law and put the Clearinghouse in the role of making determinations as to the scope of particular rights. The principle that rights protections “should protect the existing rights, but neither expand those rights nor create additional legal rights by trademark law” was key to the work of the Implementation Recommendation Team…Though ICANN cannot mandate that the Trademark Clearinghouse provide notices beyond those required in accordance with the Registry Agreement,…

While a thirty day extension of the claims service does not give us substantial heartburn, it is hard to square ICANN’s assertion of two months ago that it has no authority to require an extension of the 60-day period with the Strawman proposal to do precisely that.

More importantly, we believe it is critically important that the RPMs only aid in enforcement of existing trademark rights, and refrain from creating new rights in the DNS, as ICANN is neither a national legislature nor an international treaty organization with any power to create such new rights. We presume that ICANN’s September declaration that expanding the TMCH protections “to any form of name” would impermissibly cross that line was vetted by its in-house counsel and/or well-compensated outside lawyers, and we know of no change in trademark law in the intervening two months, so we are mystified how the Strawman Model can posit a change that would squarely put ICANN into the trademark rights creation business.

Some other statements in the blog that caught our eye — with our reaction:

  • ·         “We are now firmly focused on moving forward with Trademark Clearinghouse implementation to ensure that the New gTLD Program is launched in accordance with our targets. Next, I will focus on URS and RAA.” – ICA participated in the BC/IPC working group on the URS, and was particularly pleased with its consensus “Agreement that even with a default judgment, there must be at least some substantive review of the elements that make up a successful complaint.  Simple failure to respond to a URS claim would not result in automatic judgment in favor of complainant without a showing that the complainant established a prima facie case (e.g., valid trademark, identical or confusingly similar domain name, no legitimate registrant rights, bad faith registration and use).” It’s rather disconcerting to see this registrant-friendly element omitted from the Strawman, as well as the lack of clarity (aside from the CEO’s pledge of personal focus) as to how the URS will be proceed toward implementation.
  • ·         “Possible blocking mechanisms were discussed, but were not included in the strawman model.” – The one positive result of the LA meeting appears to be that trademark owners will not be granted a prior restraint power over domain registrations, which we believe has no legal basis.
  • ·         In addition, we acknowledged the need to address separately how elements of these solutions might apply to legacy gTLDs, but did not make this a pre-requisite for developing the strawman solution.” – We find it highly disturbing that the potential application of new gTLD “solutions” to incumbent gTLDs like .com was even raised in this highly irregular proceeding. The GNSO is clearly on record (as of December 2011) that a PDP for UDRP reform should be initiated eighteen months after the first delegation of new gTLDs and that the performance of the RPMs at new gTLDs should be considered within that context. ICA believes that any consideration of RPMs across both incumbent and new gTLDs must proceed in regular order through a standard PDP, and that any such PDP must, for the sake of balance, also encompass consideration of UDRP reforms addressing registrant concerns.
  • ·         “Until the first new gTLD is delegated, Akram Attalah and I will personally oversee the whole New gTLD Program.” – Again, while we appreciate much about CEO Chehade’s energetic hands on management approach, and recognize that there is at least a temporary need to fill the gap in gTLD program management left by the the unexplained June resignation of New gTLD Program Director Michael Salazar as well as last week’s resignation of Chief Strategy Officer Kurt Pritz for “a recently identified conflict of interest”, we have significant reservations about this open-ended commitment of direct oversight, especially given that both anticipated (the imminent GAC “early warnings”) and unanticipated issues and challenges could delay the first new gTLD delegation into 2014. We would hope to see ICANN move quickly to secure and designate a qualified individual to manage the further rollout details of the new gTLD program. CEO Chehade and COO Attalah have multiple responsibilities that may make it difficult to find sufficient bandwidth to directly engage in the day-to-day details of program implementation. Plus, it is often beneficial for senior management to have some objective distance from implementation details at times when disputes must be resolved.

Robin Gross, the Chair of ICANN’s Non-Commercial Stakeholders’ Group (NCSG), has shared her personal account of participation in the LA meeting at http://ipjustice.org/wp/2012/11/18/icanns-11th-hour-domain-name-trademark-policy-negotiations-the-good-the-bad-and-the-ugly-dissecting-the-strawman/ . Her piece concludes:

Since the strawman is not the outcome of an agreed consensus that permitted equal participation from all impacted stakeholders, the st
rawman proposals cannot be said to over-ride the output of legitimate policy development and should only be considered for implementation where the model settles technical details and not policy matters. Dissection of the strawman proposals are necessary to sort-out true implementation from true policy.

We agree completely. Just prior to ICANN’s Toronto meeting, ICA issued our “Domain Rights Dozen” principles for the review of any proposed RPMs changes. Much of what is in the Strawman Model appears to violate multiple principles relating to procedure and substance.

It’s our understanding that some members of the BC and IPC will, while withholding support for the Strawman because it lacks the blocking mechanism and other features they favour, nonetheless be urging that it be put out for public comment. We fervently disagree. Any part of the Model that even hints of policy content should be shunted into the normal PDP process presided over the GNSO for consideration in regular order through fully transparent and accountable processes. Deviating from that path would set loose some extremely dangerous straws in the wind for the continued legitimacy of ICANN’s multi-stakeholder process.

 

 

 

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