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

[Jonathan Robinson]

Bruce,

Thank-you for keeping us up to date on this.

We very much look forward to working with you and your board colleagues on
all appropriate aspects of the GNSO's work.

Jonathan

-----Original Message-----
From: Bruce Tonkin [mailto:Bruce.Tonkin at melbourneit.com.au] 
Sent: 04 July 2013 07:14
To: council at gnso.icann.org
Subject: [council] Rationale for reconsideration request 13.3 - regarding
trademark clearinghouse

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.

Regards,
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.