[GNSO-RPM-WG] DEADLINE COB 25 Sept - ACTION ITEM: Sunrise Recommendation #2 and Small Team 2 Suggested Language:

Tue Sep 29 13:00:38 UTC 2020

Thanks Kathy.  I was on the STI with you and I remember it quite well.  The opening paragraph of the STI report you provided a link to makes it quite clear that the STI was implementation and not Policy:

“On 12 October 2009, the ICANN Board sent a letter1 to the GNSO requesting its review of the policy implications of certain trademark protection mechanisms proposed for the New gTLD Program, as described in the Draft Applicant Guidebook and accompanying memoranda. Specifically, the Board Letter requested that the GNSO provide input on whether it approves the proposed staff model, or, in the alternative, the GNSO could propose an alternative that is equivalent or more effective and implementable.”

The STI reviewed the already established Policy and the outputs from the IRT and from Staff and tried to select between two implementation models (the IRT’s and the Staff’s) to see which was “more effective and implementable.”

So, we can disagree on lots of things in this PDP, but we can’t disagree about actual and knowable facts.  The STI was implementation.  The PDP proceeding it was Policy.

Best,
Paul

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From: Kathy Kleiman <kathy at kathykleiman.com>
Sent: Tuesday, September 29, 2020 7:34 AM
To: McGrady, Paul D. <PMcGrady at taftlaw.com>
Cc: gnso-rpm-wg at icann.org; dmcauley at Verisign.com
Subject: RE: [GNSO-RPM-WG] DEADLINE COB 25 Sept - ACTION ITEM: Sunrise Recommendation #2 and Small Team 2 Suggested Language:

<<Hi Kathy,

We talked about this at some length on one of our calls.  This is not how we did it for the URS and TM-PDDRP.  Those were all done in implementation, not in policy.  Here are the Policy outputs for the first round:  https://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm.  No mention of URS or TM-PDDRP.  Those were implemented as a result of the ideas of the IRT as refined by the STI.  The were not PDP policy and, like those, there is nothing that would keep an IRT from exploring a third party challenge mechanism.  The idea may be scrapped by the WG, but if it is it should be scrapped for accurate reasons.

Best, Paul >>
Paul, we did talk and disagreed about processes awhile back.  I've gone back and can see the basis for your confusion.  There was an IPC group (with all members selected by the IPC) which met to come up with a set of new RPMs for New gTLDs - and went by the acronym of "IRT" with a different meaning. This IPC-group then presented its result to the GNSO and ICANN at the Sydney meeting, and there was great concern over its proposals presented to the Board (including the first joint ALAC-NCSG resolution).
The Board asked the GNSO to create an expedited policy group to decide which additional RPMs met the approval of the full GNSO -- and on request of the ICANN Board, the GNSO Council created a STI (Special Trademarks Issues Review Team) which met with a pre-determined balance of representation from all GNSO Stakeholder Groups, as well as At-Large and other ACs. Very expedited timeframes.
The Chair of the STI was David Maher of RySG and longtime General Counsel of the Public Interest Registry (implementation review teams, as you know, are run by ICANN Staff.).
The STI - we (as we both remember) - reported back in only a few months to the GNSO Council.  Our STI Report was reviewed and adopted by the GNSO Council and later the ICANN Board.  Our policy recommendations then went to a traditional "IRT," for working through the details of the policy recommendations (including URS and TMCH) that we had made together.
I include the framing paragraphs of the STI report below and the link -- and absolutely submit that overlapping acronyms make our lives difficult!
Overall, the URS, TMCH and UDRP all pass the criteria for being GNSO-approved policies. And I must return to my concern that at least part of your proposal gives policy-making powers to a future "implementation review team" which is not the way we do things.
Best, Kathy
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STI Report -
"Background and Approach Taken
On 12 October 2009, the ICANN Board sent a letter1to the GNSO requesting its review of the policy implications of certain trademark protection mechanisms proposed for the New gTLD Program, as described in the Draft Applicant Guidebook and accompanying memoranda. Specifically, the Board Letter requested that the GNSO provide input on whether it approves the proposed staff model,or, in the alternative, the GNSO could propose an alternative that is equivalent or more effective and implementable. In response, the GNSO adopted a resolution creating the Special Trademarks Issues review team (STI) on 28 October 20092which included representatives from each Stakeholder Group, At-Large, Nominating Committee Appointees, and the GAC(identified on Annex 3), to analyze the specific rights protection mechanisms that have been proposed for inclusion into the Draft Applicant Guidebook."
Page 2, https://gnso.icann.org/sites/default/files/filefield_8000/sti-wt-recommendations-11dec09-en.pdf

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