[Gnso-igo-ingo-crp] CLARIFICATIONS (Re: Proposed agenda for the WG call on 12 June 2018 at 16:00 UTC)

Tue Jun 12 03:12:08 UTC 2018

Dear all,

Staff wishes to clarify a few matters.

First, please note that a consensus call process is not a formal voting process. The GNSO Working Group Guidelines require that initial designations of consensus levels be made by the Working Group chair(s) following what they believe has been, and based on their estimation and evaluation of the outcome of, sufficient discussion of the issues under consideration by the group. As has been noted previously by this group, polling is intended to be limited to rare situations, and even so the Guidelines note that “care should be taken in using polls that they do not become votes”. There is no requirement that all members’ preferences must be expressly listed, and this is not generally done in other PDPs – however, for this particular group Petter believed that in the circumstances it might be useful to do so in the document that he sent around initially.

The updated document that Steve circulated most recently with the proposed agenda reflected what, as of the close of the consensus call and when Petter and Susan conferred with staff, seemed to be the situation based on members’ expressed opinions. In some cases, where a person noted that he/she supported a recommendation/option but did not specifically say he/she opposed others, their silence on the other recommendations/options was not necessarily interpreted as objection – seeing especially as this process is not a formal voting process and, as such, there is no provision for abstentions. There may be disagreement about whether someone in fact supported or opposed a proposal based on what they did or did not say, or whether he/she will now support a proposal because of some changes made to the text – this iterative consensus process is intended to elicit that type of clarification and error correction.

Secondly, the GNSO procedures do not require that the Final Report be circulated along with the opening of the consensus call. While typically this has been done in some other PDPs, the circumstances of this Working Group mean that the last version of the draft Final Report that was circulated could not include final proposed language on some of the options, as these needed clarifying through the consensus process that is now taking place. Staff notes that members were invited to voice concerns and raise suggestions about substantive text of the draft Final Report that had been circulated, and a deadline of 21 May suggested for this purpose. Staff has noted the few suggestions received and will be updating the report further with the final results of this consensus call.

Thirdly, staff had already noted to Petter and Susan that Option 1 and Option 4 may be incompatible with one another, as several members have already begun discussing on this mailing list. Our collective expectation was that this is something that can and should be clarified by the group, possibly on the call taking place later today, if it becomes clear that those are indeed going to be the group’s final consensus recommendations. In this regard, while the anticipated date of finalization of all recommendations and the report was intended to be 17 June, we note that this was based on the hope that there will not be significant difficulty in reaching agreement on the final consensus levels and recommendations. It is up to the group, in consultation with Petter and Susan, to determine if after the call today more time may be needed.

Finally, the updated consensus level designations document includes a few changes to the text of Recommendations #1 & #2. For Recommendation #1, we have added the word “substantive” to the phrase “No [substantive] changes to the UDRP and URS are to be made … “, reflecting a suggestion made by Zak to clarify that procedural changes may still be permitted if these become necessary. For Recommendation #2, we suggested a change (as noted by George) but did not go on to suggest that the sentence in addition be amended to say that where an IGO “believes it has unregistered trademark or service mark rights” as also suggested by George. We suggested an amendment to read only “believes it has unregistered rights” instead, as we believe that UDRP jurisprudence permits certain forms of unregistered rights that are not trademark-based (e.g. via passing off or unfair competition) to ground standing to file a complaint.

Staff would also like to take this opportunity also to reiterate that where we have raised questions or provided information about specific issues, we have done so in our role as policy staff facilitating and supporting GNSO Working Groups, managing Working Group processes, and providing subject matter expertise where needed or appropriate. We hope that the Working Group has found this assistance helpful.

Thank you.

Best regards,
Mary and Steve

From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf of Reg Levy <rlevy at tucows.com>
Date: Tuesday, June 12, 2018 at 08:18
To: George Kirikos <icann at leap.com>
Cc: Heather Forrest <haforrestesq at gmail.com>, "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda for the WG call on 12 June 2018 at 16:00 UTC

This is precisely why I think we need to have a vote that is much more obvious about who is voting in support (or not) of what.

It should ALSO be made VERY clear what an abstention means. I take it to mean "no" but I know that is not a universal view.

--
Reg Levy
Director of Compliance
Tucows

D: +1 (323) 880-0831
O: +1 (416) 535-0123 x1452

UTC -7

On 11 Jun 2018, at 15:00, George Kirikos <icann at leap.com<mailto:icann at leap.com>> wrote:

Actually, I spoke too soon. For Recommendation #2, the text was
changed (to what I initially thought was acceptable), but it only
captured *part* of the change, not the full change. i.e. my change
was:

"An IGO may consider this to be an option where it does not have
registered trademark rights or service mark rights in its name or
acronym (as applicable) but believes it has certain unregistered
trademark or service marks rights for which it might adduce….."

But this new document instead says:

"An IGO may consider this to be an option where it does not have
registered trademark rights or service mark rights in its name or
acronym (as applicable) but believes it has certain unregistered
rights for which it might adduce….."

i.e. the *second* "trademark or service" marks is *missing* from this
new version. So, unless the wording is changed again, count me as *NOT
SUPPORT* of this text.

I'm going to go through this more thoroughly later, and consolidate
all future comments into a single email.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Mon, Jun 11, 2018 at 5:34 PM, George Kirikos <icann at leap.com> wrote:

This is late, and given what I've posted the past few days, one would
have expected it to have been triple-checked for accuracy, etc. I went
directly to Recommendation #2, and noticed I'm now listed as "Support"
and Paul Tattersfield is listed as "do not support" (whereas in the
document before this, sent by Petter, both Paul T. and I were listed
as "do not support"):

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001238.html

Here was my comment:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001219.html

and Paul T's: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001237.html

both of us wanted slight changing of the wording.

So, I see that the document that Steve circulated *does* change the
wording, so my "Support" in the new document is accurate. But, then
since Paul T agreed with me (and presumably agrees with the new text),
why is he still listed as "Do Not Support"???

Also,  we know from posts on the mailing list that Jim Bikoff
expressly said he only supports Recommendation #1 !

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001256.html

"All, please understand my position in support of recommendation 1
that no change to UDRP or URS or special procedure is warranted.

No support for other recommendations."

So, that's 2 errors (i.e. Paul T flips to "Support" and Jim Bikoff is
added to "Do not support")

So, this *still* has *obvious* errors, and I haven't even reviewed it
closely (so there could be, and probably are, even more). I have so
little confidence, I basically have to *redo* it on my own, on a
compressed time frame.

As for the agenda, I'd like my new Section 3.7 appeal to be a topic
added to the agenda (which does require a call between the chair and
myself, and since we're both going to be present -- or it could be
immediately after the call), along with the general topic of how it's
humanly possible to get a final report out by Sunday. Or if it's
already been decided that that timeline is off the table, tell us now,
to release some pressure from this PDP.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Mon, Jun 11, 2018 at 5:03 PM, Steve Chan <steve.chan at icann.org> wrote:

Dear WG Members,

With apologies for late delivery, as George noted, please find the proposed
agenda for the WG call on 12 June 2018 at 16:00 UTC for 90 minutes.

Welcome / SOIs
Review of Initial Consensus Level Designations
Next Steps
AOB

In regards to agenda item 2, please see the attached document to support
those discussions. This document follows and is a revised version of the one
sent by Petter on 9 June 2018.

Best,

Steve

Steven Chan

Policy Director, GNSO Support

ICANN

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