[Gnso-newgtld-wg-wt3] Actions/Discussion Notes: Work Track 3 Sub Team Meeting 20 December
Mike Rodenbaugh
mike at rodenbaugh.com
Wed Dec 21 18:39:16 UTC 2016
Thanks Jeff, I strongly agree with this.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
http://rodenbaugh.com
On Wed, Dec 21, 2016 at 9:05 AM, Jeff Neuman <jeff.neuman at comlaude.com>
wrote:
> All,
>
>
>
> Sorry I was unable to make the call yesterday, but I do want to respond to
> some of the notes. Yes, my comments were in my personal capacity and not
> on behalf of my employer or as being chair. As I previously stated, the
> ALAC filed a community based objection against .health essentially claiming
> that because the World Health Organization and another small medical
> association asked them to intervene, that the ALAC represented the
> community of end users in the health industry.
>
>
>
> The ‘gaming” comment here was that the World Health Organization was
> unable to convince its international members to file the objection to
> .health (and spend the money), so it sent some of its third party
> consultants to try and convince the ALAC to file the objection on their
> behalf. When the ALAC saw that the Independent Objector was intending to
> file a Limited Public Interest Objection against .health (because the IO
> put a list of the ones he wanted to object to on his website long before
> the filing deadline), the ALAC decided to use the Community route. ALAC
> was rightfully denied standing as a “community” because the reality is that
> the ALAC is NOT a community of health industry professionals established
> and known to represent the health industry.
>
> The standing rules for a community objection should not be changed to
> allow the ALAC to claim it represents any form of community.
>
>
>
> *Jeffrey J. Neuman*
>
> *Senior Vice President *|*Valideus USA* | *Com Laude USA*
>
> 1751 Pinnacle Drive, Suite 600
>
> Mclean, VA 22102, United States
>
> E: jeff.neuman at valideus.com or jeff.neuman at comlaude.com
>
> T: +1.703.635.7514 <(703)%20635-7514>
>
> M: +1.202.549.5079 <(202)%20549-5079>
>
> @Jintlaw
>
>
>
>
>
> *From:* gnso-newgtld-wg-wt3-bounces at icann.org [mailto:gnso-newgtld-wg-wt3-
> bounces at icann.org] *On Behalf Of *Julie Hedlund
> *Sent:* Tuesday, December 20, 2016 4:23 PM
> *To:* gnso-newgtld-wg-wt3 at icann.org
> *Subject:* [Gnso-newgtld-wg-wt3] Actions/Discussion Notes: Work Track 3
> Sub Team Meeting 20 December
>
>
>
> Dear Sub Team Members,
>
>
>
> Please see below the action items and discussion notes captured by staff
> from the meeting on 20 December. *These high-level notes are designed to
> help Work Track Sub Team members navigate through the content of the call
> and are not a substitute for the recording*. Please also see the
> recording on the meetings page at: https://community.icann.org/
> display/NGSPP/Work+Track+3+Meetings.
>
>
>
> Best regards,
>
> Julie
>
> Julie Hedlund, Policy Director
>
>
>
>
>
> *Action Items/Discussion Notes 20 December*
>
>
>
> *1. Update from the Full PDP Working Group (Avri Doria)*
>
>
>
> · Focused on completing the first reading of the CC1. Completed
> that process.
>
> · Next step is for the Chairs and staff to try to pull together a
> first draft of a document that makes recommendations based on responses to
> CC1
>
> · Poll on changing the rotation schedule to take the 3:00 UTC
> Monday out of rotation and replace with 3:00 UTC Tuesday.
>
>
>
> *2. Recap and Positioning on Limited Public Interest Objections*
>
>
>
> *a. Content & function for purpose of policy stated in AGB 3.2.2.3 and
> 3.5.3*
>
> *b. Needs with regard to future implementation*
>
>
>
> · Last meeting interesting discussion on this topic and there
> seemed to be some consensus around not needing major changes. Do we agree?
> [No objections offered.]
>
> · Think about a different interpretation on terminology.
>
>
>
> From the chat:
>
> *Gg Levine (NABP):* "Universally" seems unrealistic as an alternative to
> "generally."
>
> *Karen Day:* universal isn't realistic so is there anything better than
> generally?
>
> *Gg Levine (NABP):* Sorry, I don't have a better suggestion than
> generally.
>
> *Karen Day:* Gg - Me either so absent anyone coming up with one, looks to
> me like "generally" is what we'll need to stick with.
>
>
>
> *c. ALAC lack of standing*
>
>
>
> · Discussion about the issue of ALAC being given funding to
> participate in the Limited Public Interest Objection process but not having
> standing.
>
> · Will be a discussion in the ALAC on this topic, whether to
> continue the process. Will come back to this group as that discussion
> proceeds.
>
> · The ALAC was given funding but not given standing, like the
> independent objector. To file a public interest objection you have to have
> some involvement in the issue. Classic Catch-22.
>
> · So, the solution could be to give ALAC standing or to removing
> the funding.
>
> · Maybe the intent was to fund ALAC where they would otherwise
> have standing to object.
>
> · Don't think it was actively discussed. ALAC decided to file
> objections similarly to filing advice to the Board (such as on confusingly
> similar). One way or another it has to be clarified or withdrawn. Not
> much more to say on this until we know whether or not the ALAC wants to
> continue with this option.
>
> · Did the ALAC file for the same things as the Independent
> Objector did? If so that would be duplication.
>
> · The Independent Objector was to pick up objections from those
> who had no other way to object. ALAC like the other ACs had the ability to
> object to things that were within their area of concern. Might need to say
> something about how the IOs are selected and used, to tighten up the
> descriptions.
>
>
>
> From the Chat:
>
> *Greg Shatan: *Maybe the intent was to allow ALAC to object only where
> they had standing.
>
> *Annebeth Lange, ccNSO:* Good points from Alan here. ALAC is representing
> the users, even if it is difficult to prove.
>
> *Paul McGrady 2: *Apologies if this has already been asked, but were
> there times when ALAC filed an objection on a string that the I.O. didn't
> object to?
>
> *Cheryl Langdon-Orr (CLO):* that was the rationale for being funded to
> object Yes Annabeth
>
> *Kiran Malancharuvil:* I'm okay with standing for alac if the objection
> process requires alac to justify why this is on behalf of users.
>
> *avri doria: *lots of things may not have appeared clear to the panelists
> all along the way. By default however, it will stand as it is.
>
> *Greg Shatan*: Did ALAC analyze the standing issue before filing the
> objections? Or was it just assumed that there would be standing?
>
> *Karen Day:* @Greg - we're looking at doing deeper research in the
> objections themselves and if we get it lined up we will definately add this
> question as one to include.
>
>
>
> *d. Does the process invite lobbying from 3rd parties?*
>
>
>
> · Example: WHO lobbying ALAC. Concerns that this could be a
> problem.
>
> · There was an allegation that ALAC was being gamed. There is no
> question that the WHO is one of the groups that brought this to ALAC's
> attention. They carried out due diligence. Don't think it was gaming.
>
> · Clarification: Question about lobbying was in relation to the
> ALAC funding and standing issues.
>
> · One could be more clear if ALAC is funded again what their
> process would be. Could say that it is appropriate that things are brought
> to their attention according to their user community. Separate from
> whether there should be funding for ALAC and only ALAC. Needs a revisit
> overall.
>
>
>
> From the chat:
>
> *Kiran Malancharuvil:* how would you ever solve for that?
>
> *Paul McGrady 2:* Isn't the WHO an end user? Can't an end user ask the
> ALAC for help? I guess I don't see the gaming.
>
> *Kiran Malancharuvil:* agree
>
> *avri doria:* i think the notion of gaming and esepcially accusations of
> gaming are pernitious and should be avoided as much as possible.
>
> *Cheryl Langdon-Orr (CLO):* agree
>
> *avri doria:* judging the intentionality of others is really hard.
>
> *Annebeth Lange, ccNSO:* @Avri - agree
>
> *Greg Shatan:* WHO is an IGO and thus aligned more with the GAC, but I
> suppose we could also call them an end-user.
>
> *Alan Greenberg:* Note that Jeff made it clear he was taking off his
> chair hat and speaking with relation to one of the applicants. (If I
> remember correctly). We did not class WHO as an end user, but as a group
> that alerted us to an end-user issue.
>
> *Kurt Pritz:* (1) I found 23 Limited Public Interest Objections - all
> seem bona fide except of course, we cannot tell with the Independent
> Objector or ALAC; (2) Everyone has standing to file a Limited Public
> Interest Objection, ALAC file one and withdrew it (although I do not know
> why) so why was ALAC denied standing?
>
> *Kiran Malancharuvil 2*: I honestly don't understand how we can call
> anything gaming. This is an open process. Organizations have every right
> to engage in the process. I think there's a tendency at ICANN to devalue
> certain voices (corporations, organizations, etc.) and I think that's
> dangerous. Multi-stakeholder is multi-stakeholder.
>
> *Annebeth Lange, ccNSO*: For me, gaming is something very different from
> what we are talking about now. I must be allowed to make a stakeholdergroup
> aware of a problem.
>
> *Paul McGrady 2*: @Annebeth - agree. "Gaming" is something sinister.
> End Users making ALAC aware of a concern is not.
>
> *Phil Buckingham:* +1 Annabeth.
>
>
>
> *3. Legal Rights Objections – AGB 3.2.2.2 and 3.5.2 / Principal G –
> Recommendation 3; See Wiki:
> https://community.icann.org/display/NGSPP/4.4.3+Objections
> <https://community.icann.org/display/NGSPP/4.4.3+Objections>*
>
>
>
> *a. Review of Objections Statistics with links to results for LRO cases.*
>
> *b. Review of WIPO Final Report on LRO*
>
> *c. Review of INTA Report – The ICANN LRO: Statistics and Takeaways:
> See: https://community.icann.org/x/Vz2AAw
> <https://community.icann.org/x/Vz2AAw>*
>
>
>
> · Instead of trying to guess based on the statistics that we had
> an overwhelming number of applicants prevail and therefore the cases must
> have been no good, which should step back and suggest changes to the policy
> to make it useful for the future. One reason why the complainents lost
> because the LRO isn't tailored to do its job. Enfringement has to do with
> use, which is hard to prove. Not a useful policy. Need to do some
> significant reworking if we are going to protect consumers.
>
> · One of the issues that Paul McGrady has raised in his proposal
> and possible solution -- anyone else want to weigh in?
>
> · Seems that the LRO were nearly impossible to win from the mark
> owner, if the mark had more than one meaning the panelists decided it
> wasn't bad faith. Need more points for an inference of bad faith.
>
> · A lot of this stems from the fact that the standards that were
> being applied were kind of a hash, and also whether there was precedential
> value on decisions and what is being judged.
>
> · Not a lot of sympathy for trademark names when we are talking
> about a dictionary term. Don't want to take a dictionary word out of
> common use
>
>
>
> From the chat:
>
> · *Kurt Pritz:* Are there any decisions where we thought the panel
> incorrectly found for the applicant?
>
> · *Paul McGrady 2:* Bad faith can only be inferred from the facts
> - unless a party admits to it - so we need more inference points.
>
> · *avri doria:* i think trying to decide that a decsion of a panel
> was right or wrong is tough since there are two sides, at least, to each of
> the cases. we can mre look for places where different panels seemed to
> decide similar cases in a contradictory manner.
>
> · *Kurt Pritz*: Abuse or infringement is generally demonstrated
> through use and there is no "use" at the application stage. (As Paul said.)
> But we should take care not to make a process that is more easily winnable
> just to balance out the results. There should be real infringement before
> an application is defined.
>
> · *Paul McGrady 2:* I think abuse can be shown without use as can
> dilution; infringement is based on use though.
>
> · *Kurt Pritz:* Has the delegation of .coach or .express resulted
> in abuse?
>
> · *Paul McGrady 2*: http://purses.coach/ leads to PPC ads, so
> yes. @Robin, we should be careful with throwing around terms like
> "generic."
>
> · *Kurt Pritz:* Then the RPM can be used with that specific
> example for purse.coach but all legitimate uses of a .coach name should
> not be barred.
>
> · *Nathaniel Edwards*: Yes, but because a trademark is a
> dictionary term does not mean that it is not an arbitrary or fanciful
> trademark entitled to broad protection. GOOGLE had a dictionary meaning
> before it was a trademark.
>
> · *Greg Shatan:* wallets.coach and handbags.coach do the same.
> Feh.
>
> · *Paul McGrady 2:* Dictionary entry does not = generic.
>
> · *Rubens Kuhl:* Google did not. Googol did.
>
> · *Greg Shatan:* Looks like all of those (bags.coach, too) are
> owned by Coach. Apparently registered defensively. Coincidence or business
> plan?
>
> · *avri doria: *Again, indicating intentions is risky.
>
>
>
> *Paul McGrady on Legal Rights Objection 3.2.2.2 [Reading through the
> attached document with proposed language.] *
>
>
>
> *Action:* Look through the proposal and discussion on the list/at next
> meeting.
>
>
>
> _______________________________________________
> Gnso-newgtld-wg-wt3 mailing list
> Gnso-newgtld-wg-wt3 at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt3
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt3/attachments/20161221/d6f31db0/attachment-0001.html>
More information about the Gnso-newgtld-wg-wt3
mailing list