[GNSO-RPM-WG] Updated Proposed Process for TMCH Sunrise & Trademark Claims Sub Teams Including Submission of Additional Data

Fri Feb 1 15:57:11 UTC 2019

Dear George and everyone,

Staff begs your indulgence as we believe we need to respond to George's continued allegation that ICANN staff is asking Working Group members to do the work that had originally been suggested be done by staff. As we have endeavored to explain on the mailing list and on the Sub Team calls, the current "ask" from the Working Group leadership team is not that Working Group members should perform the same broad research that was originally suggested. Rather, the proposal is a much more specific and narrow one: viz., that Working Group members who already have knowledge of additional data sources not yet known to the Working Group should provide that information now. This will ensure that relevant data is brought to the Working Group's attention as well as allow the Working Group to leverage the expertise and knowledge present amongst our membership.

Staff has also tried to clarify that, because the original research suggestions were made early on in the PDP deliberations and before the detailed data request for the Sunrise and Trademark Claims surveys was developed, it may be more productive at this stage of the PDP to narrow any additional research that the Working Group believes is needed to filling gaps for which the data amassed to date do not provide useful information. As noted previously, the original research suggestions were fairly broad and would have required the Working Group to analyze any and all materials gathered through that broad search, without any initial winnowing or preliminary analysis by staff.

At no point in the process did staff intimate that the research would have been “too hard”; we simply reported our view that the breadth of the original suggestion meant that a substantial amount of time and effort would have been expended on an extremely wide-ranging and vaguely-defined search in order to compile a list of sources (in many cases anecdotal) that would then have required additional Working Group effort to review and analyze. In view of the Working Group agreement to conduct professional surveys for Sunrise and Trademark Claims, it therefore seemed prudent to first see the results of those surveys and then take stock of what else might be necessary and useful.

We trust that this explanatory note is clear.

Best regards,

Julie, Ariel & Mary

On 2/1/19, 21:32, "GNSO-RPM-WG on behalf of George Kirikos" <gnso-rpm-wg-bounces at icann.org on behalf of icann at leap.com> wrote:

    Hey Brian,

    That wasn't a rhetorical question (nor were other questions, for that

    matter). Do you have a citation for your claim about a sheet having

    been circulated for the URS?

    Correct me if I'm wrong, but the only URS-related form that I can

    remember being circulated had to do with the submission of individual

    proposals, see:

    https://mm.icann.org/pipermail/gnso-rpm-wg/2018-August/003237.html

    But, what I was writing about was the handling of ***data sources****,

    that would inform the sub team work, which is completely different.

    i.e. the data sources that were identified in August 2017:

    https://mm.icann.org/pipermail/gnso-rpm-wg/2019-January/003622.html

    and which ICANN staff abandoned efforts to compile and analyze. Had

    ICANN staff told us this a month later, in September 2017, we'd have

    had more than a year to do it ourselves. But, instead we're told this

    in early January 2019:

    https://mm.icann.org/pipermail/gnso-rpm-wg/2019-January/003608.html

    And then the co-chairs used up the clock by taking ****20 days*** to

    create a process:

    https://mm.icann.org/pipermail/gnso-rpm-wg/2019-January/003619.html

    (i.e. process created on January 29, issue identified January 9,

    although it had been raised previously)

    That process left just **10 days*** (now 7 days) for others to do what

    ICANN staff didn't accomplish over a period of a year and a half.

    Thus, the co-chairs took twice as long to **design a process** than

    they left others time to do the actual work! That's utterly

    ridiculous.

    Oh, and the co-chairs also cancelled the January 30th working group

    meeting where this could have been discussed in real-time!

    https://mm.icann.org/pipermail/gnso-rpm-wg/2019-January/003619.html

    "  * Deleted 30 January full WG meeting (Subteams continue to meet);"

    How convenient.

    Yesterday, I asked that ICANN staff simply post whatever they'd

    already compiled (in rough form, no need to make it fancy), so that

    working group members wouldn't be starting from scratch:

    https://mm.icann.org/pipermail/gnso-rpm-wg/2019-January/003623.html

    Since nothing has been posted, the evidence so far is that they did

    absolutely nothing (except throw up their hands and say "This is too

    hard, let's give it back to the working group members to do it.")

    Apparently, when ICANN staff say something is "too hard", people

    listen (despite ICANN staff getting *paid* to do that work). When

    working group members identify issues about workload and unrealistic

    timelines, those concerns are instead met with silence, trivialized,

    or met with the imposition of even **greater** obstacles than what

    others must endure.

    Paul Keating previously invoked the metaphor of voter registration

    laws in the US south, meant to deter voter participation. That's an

    apt metaphor that applies here too. Rather than trying to reduce

    barriers to participation and trying to

    have outreach for that hard to obtain data, the new processes simply

    create more and more obstacles that need to be overcome.  Barriers are

    erected rather than eliminated, to help preserve the status quo (i.e.

    the data that staff didn't bother to compile or analyze was

    identifying abuses of the TMCH and sunrise, which would point to deep

    flaws that would require changing the status quo in order to fix

    them). In contrast, the red carpet is rolled out for data sources

    (like the INTA study) that seek to preserve the status quo.

    This is also intertwined with the issue of extreme workload in the sub

    teams. (see those discussions on the sub team lists and calls)

    By the way, I also continue to disagree with the process/timing for

    the individual proposals. Those must be submitted by Feb 20 according

    to the revised process, despite the fact they won't even be considered

    until March 27 (and will continue to be considered/reviewed until

    April 17)! It seems to me that compressed timeline is designed to

    discourage submission of individual proposals. Furthermore, the

    procedure treats sub team proposals differently than individual

    proposals. This wouldn't matter, if the working group and sub teams

    had balanced participation. But, with the over-representation of

    expansionary TM interests, this effectively gives them a veto over

    individual proposals even getting into the document that will go for

    public comments. Here's an illustration as to why this is flawed.

    Suppose a proposal can reach consensus in the GNSO (or broader

    community) with 80% support, overcoming any IPC opposition (i.e. IPC

    has 1/6th of the GNSO votes), with all other constituencies in favour

    of that proposal. But, suppose those who are sympathetic to the

    perspective of that 1/6th of the GNSO actually represent 40 to 50% of

    the subteams and/or the working group.

    When that proposal (which would have 80% support with balanced

    representation) comes before the sub team, it gets shot down under the

    current proposed process (since 40 or 50% would oppose it in the sub

    team). Then, to "override" that in the working group itself, it also

    becomes impossible, because that 40 or 50% continues to oppose it.

    The only way to overcome that overrepresentation is to have lower

    barriers for inclusion in the initial report, so that the public can

    weigh in on things. And that public comment can make a big difference,

    especially when it's from a broad swath of the community (as it likely

    would be, given how many are interested in these topics).

    Each and every time I've foreshadowed that I would invoke the working

    group guidelines to challenge these poor procedures and decisions,

    I've followed through (check the IGO PDP mailing list, where I

    foreshadowed it each time).  Every time. It seems that I will have to

    demonstrate again that I will follow through, as these concerns do not

    appear to be taken seriously.

    John McElwaine previously brought up the idea of bringing in a

    professional and neutral facilitator in order to replace the

    co-chairs, and have someone be chair that doesn't have a stake in the

    outcome and who'd listen to all sides. I think that idea needs to be

    revisited and explored, to try to overcome some of the dysfunction

    that exists at present. My understanding is that the co-chairs receive

    travel subsidies to ICANN meetings. If one adds up that cost for 3

    ICANN meetings/year x 3 co-chairs, and reallocated that instead to a

    professional facilitator (one completely outside the domain industry,

    who can focus on the processes, regardless of the topic at hand), I

    think that would likely have no financial impact.

    Sincerely,

    George Kirikos

    416-588-0269

    https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=HicDYVdLs_izazF_hGvJYj8uFGNFu65nU1bkuC5icUs&e=

    On Thu, Jan 31, 2019 at 4:10 PM George Kirikos <icann at leap.com> wrote:

    >

    > Brian: I'm not sure what you're talking about. Where's the mailing

    > list post that advertised the sheet that you claim was circulated

    > previously for the URS?

    >

    > Sincerely,

    >

    > George Kirikos

    > 416-588-0269

    > https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=HicDYVdLs_izazF_hGvJYj8uFGNFu65nU1bkuC5icUs&e=

    >

    > On Thu, Jan 31, 2019 at 3:27 PM BECKHAM, Brian <brian.beckham at wipo.int> wrote:

    > >

    > > George, a sheet will be circulated as was done with the URS for the TMCH and related RPMs.

    > >

    > > WG members will be encouraged to identify the particular issue raised by any such source, and moreover will be encouraged to propose a solution.

    > >

    > >

    > > Brian

    > >

    > > On 31 January 2019 at 12:10:43 GMT-8, George Kirikos <icann at leap.com> wrote:

    > >

    > > P.P.S. Here's a sample of some articles I found in about 30 minutes of

    > > research. I would pay close attention to John Berryhill's comments to

    > > the first link -- some very eye-opening and startling insights. Why

    > > wasn't John Berryhill invited to share those insights with this PDP,

    > > to answer questions, and counter what INTA presented and to achieve

    > > balance? Why should anyone have to fill out a form, when INTA didn't?

    > >

    > > https://urldefense.proofpoint.com/v2/url?u=http-3A__domainincite.com_16492-2Dhow-2Done-2Dguy-2Dgames-2Dnew-2Dgtld-2Dsunrise-2Dperiods&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=Q4LuF5DMkHF4iUrTqYe2oFI0mbzPBQ62yuv9X4PiQPA&e=

    > >

    > > https://urldefense.proofpoint.com/v2/url?u=https-3A__onlinedomain.com_2014_04_15_legal_fake-2Dtrademarks-2Dstealing-2Dgeneric-2Ddomains-2Din-2Dnew-2Dgtld-2Dsunrises_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=uPorEoSyRmntZ4ZFJcSS_W7ZE-CYS4sLeAYACRHkOQ4&e=

    > >

    > > https://urldefense.proofpoint.com/v2/url?u=https-3A__www.thedomains.com_2017_02_01_the-2Dtrademark-2Dclearinghouse-2Dworked-2Dso-2Dwell-2Done-2Dcompany-2Dgot-2D24-2Dnew-2Dgtld-2Dusing-2Dthe-2Dfamous-2Dtrademark-2Dthe_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=DmqqES1Q2I7eavpCma560M7ZHVFjI5rDyU0xqtcjv0U&e=

    > >

    > > https://urldefense.proofpoint.com/v2/url?u=https-3A__www.thedomains.com_2015_03_12_is-2Dthe-2Dtrademark-2Dclearinghouse-2Dcausing-2Dnew-2Dgtlds-2Dto-2Dlose-2D6x-2Dthe-2Dnumber-2Dof-2Dregistrations_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=15Sfr-zKwxluaBqXk926VamAnc7aCl56_zfVufPq8d0&e=

    > >

    > > https://urldefense.proofpoint.com/v2/url?u=https-3A__www.internetcommerce.org_tmchnew-2Dgtld-2Dregistrations_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=pp21baJ3ljfxHjvvNjmQLJyj_HAhghn_zAv3f8UA8mA&e=

    > >

    > > https://urldefense.proofpoint.com/v2/url?u=https-3A__domainnamewire.com_2014_02_10_how-2Dcommon-2Dwords-2Dlike-2Dpizza-2Dmoney-2Dand-2Dshopping-2Dended-2Dup-2Din-2Dthe-2Dtrademark-2Dclearinghouse-2Dfor-2Dnew-2Dtlds_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=JWvGSidTe9IJZFS2n4La9f4r4YC3BrdAHdU30IkpuUg&e=

    > >

    > > https://urldefense.proofpoint.com/v2/url?u=https-3A__domainnamewire.com_2014_01_31_donuts-2Dsunrise-2Ddata_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=EPi853c5T1dCOMtcfIhPOzGWFEp6duP23kHg-2ePFMg&e=

    > >

    > > https://urldefense.proofpoint.com/v2/url?u=https-3A__domainnamewire.com_2014_03_25_tmch-2Dbrag_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=lpbKYL8NFrLjwu0TsYMT0kMM5cNBWMMd-OcgukyCeI0&e=

    > >

    > > https://urldefense.proofpoint.com/v2/url?u=https-3A__domainnamewire.com_2014_01_30_the-2Dnumbers-2Dare-2Din-2Ddonuts-2Dsunrises-2Dtypically-2Dget-2D100-2Ddomains-2Dbut-2Dthey-2Dalso-2Dgot-2Dgamed_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=WuEo9AjIqkY-T2UfvTKP_v3H-u2h8WNGQGIeO8Nz0MM&e=

    > >

    > > Since ICANN staff had more than a year, much more than the 30 minutes

    > > I used to find the above articles, perhaps they will take 2 minutes

    > > and simply copy/paste the results of their own research to the mailing

    > > list. While they abandoned their efforts, they surely must have

    > > compiled some data or set of links into a document/spreadsheet

    > > somewhere. No need to make it "pretty" or add to it --- ICANN staff

    > > should share just what they currently have (assuming it exists), so

    > > that members aren't starting from scratch, but can rather build upon

    > > what ICANN staff abandoned.

    > >

    > > Sincerely,

    > >

    > > George Kirikos

    > > 416-588-0269

    > > https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=10_Ifv-GGOpx6g-poGDA5fuGGnrC6CG8Ttec8RoYOSc&s=HicDYVdLs_izazF_hGvJYj8uFGNFu65nU1bkuC5icUs&e=

    > > _______________________________________________

    > > GNSO-RPM-WG mailing list

    > > GNSO-RPM-WG at icann.org

    > > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

    > >

    > >

    > >

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