[council] Rationale for reconsideration request 13.3 - regarding trademark clearinghouse

Bruce Tonkin Bruce.Tonkin at melbourneit.com.au
Thu Jul 4 06:13:44 UTC 2013

Hello All,

As you will have seen - the new gTLD Program Committee approved the revised recommendation from the Board Governance Committee on Reconsideration Request 13.3.   See attached for convenience.

You may also be interested in the rationale below, where the discussions in the GNSO are referenced.

I am  keen to discuss further in Durban how the Board and staff can work more effectively with the GNSO on the implementation of policies.

Bruce Tonkin

From: http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-02jul13-en.htm#1.a.rationale

ICANN's Bylaws call for the Board Governance Committee to evaluate and make recommendations to the Board with respect to Reconsideration Requests. See Article IV, section 3 of the Bylaws.   The New gTLD Program Committee ("NGPC"), bestowed with the powers of the Board in this instance, has reviewed and thoroughly considered the revised BGC Recommendation on Reconsideration Request 13-3 and finds the analysis sound.

Having a Reconsideration process whereby the BGC reviews and makes a recommendation to the Board/New gTLD Program Committee for approval positively affects ICANN's transparency and accountability. It provides an avenue for the community to ensure that staff and the Board are acting in accordance with ICANN's policies, Bylaws and Articles of Incorporation.

This Request asserted that a staff action allowing up to 50 names that were previously determined registered or used abusively to be included in verified trademark records in the Clearinghouse created policy or was in contradiction of existing policy or process.   The BGC considered the specific issue raised in the Request, and determined that the staff action here was implementation of existing policy, namely Recommendation 3 of the GNSO Council's policy recommendations on the introduction of new gTLDs.   (See ICANN Generic Names Supporting Organization Final Report Introduction of New Generic Top-Level Domains, at http://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm , adopted by the Board at http://www.icann.org/en/groups/board/documents/resolutions-26jun08-en.htm .) The BGC further determined that there were no other policies or procedures that were alleged to be violated by this staff action.

Upon making its determination, the BGC issued a Recommendation to the NGPC for consideration.   Before the NGPC took up the matter, one GNSO Councilor raised some concerns over some of the language in BGC's Recommendation.   The GNSO Council held a lengthy discussion regarding the BGC's Recommendation and asked that the BGC reconsider some of the language in the Recommendation, although not the ultimate conclusion.   The BGC carefully considered the GNSO Council's request and stated concerns, and ultimately determined to revise its Recommendation.   In doing so, the BGC properly noted that the Recommendation should not be seen as against the ongoing, community-wide discussion about policy and implementation.   The BGC also noted that its revised Recommendation should not be construed as discounting the importance of consulting with community members. Community consultation is at the heart of the multi-stakeholder model, and is critical whether the community is acting as a policy development body or during the implementation of policy.

Request 13-3 demonstrates the import of the ongoing work within the ICANN community regarding issues of policy versus implementation, and the need to have clear definitions of processes and terms used when seeking community guidance and input.   The Committee recognizes that the GNSO Council continues to address some of these issues, and agrees with the BGC that it is advisable to pay close attention to the policy/implementation debate, and to make sure that the issues raised within this Request be part of that community work.

Adopting the BGC's recommendation has no financial impact on ICANN and will not negatively impact the systemic security, stability and resiliency of the domain name system.

This decision is an Organizational Administrative Function that does not require public comment.
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