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[Fwd: RE: [gtld-council] modifications to new gTLD recommendations #3 and 6]

  • To: gtld-council@xxxxxxxxxxxxxx
  • Subject: [Fwd: RE: [gtld-council] modifications to new gTLD recommendations #3 and 6]
  • From: Robin Gross <robin@xxxxxxxxxxxxx>
  • Date: Sat, 30 Jun 2007 21:04:32 -0700

-------- Original Message --------
Subject: RE: [gtld-council] modifications to new gTLD recommendations #3 and 6
Date:   Sat, 30 Jun 2007 23:16:04 -0400
From:   Milton L Mueller <mueller@xxxxxxx>
To:     <robin@xxxxxxxxxxxxx>, "Liz Williams" <liz.williams@xxxxxxxxx>
CC:     Mawaki <kichango@xxxxxxxxx>, Norbert Klein <nhklein@xxxxxxx>
References: <046F43A8D79C794FA4733814869CDF0701E637AF@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx> <9C1CACD2-472C-4B62-837B-D87D5F1EFF33@xxxxxxxxx> <4686D958.7050906@xxxxxxxxxxxxx>

Can you forward to the Council list, please?

I am not sure what Liz is driving at by saying that "ICANN itself would become part of the objection process." Does she mean that ICANN would be able to initiate objections to TLD proposals? If so, that is clearly not what was intended nor is it implied by the phrase. Does she mean that people could object to the outcome of an ICANN gTLD string selection process because it violated prior rights? If so, this can and probably will happen regardless of whether Rec. 3 includes the phrase "string selection process" or not. There will always be debate about whether the actual outcome of the process has met the requirements and constraints of the policy. E.g., a trademark owner might complain that their prior rights in a string were not respected by the process and take ICANN to court.
We need that amendment because, as we noted in San Juan, it is impossible for a "string" by itself to violate free 
expression rights. It is only the _rejection_ of a string that can do so. If an approval or evaluation process rejects strings 
that people should have a right to use, it raises free expression concerns. Therefore, to accommodate free expression guarantees, 
one must refer to "string selection process" or something like that. There was talk in San Juan of substituting the 
word "approval" for "selection." That might make it clearer. We might also say "the rejection of a 

Liz is flat wrong that greater "subjectivity" is introduced. The level of subjectivity is the same 
with or without the amendment. A "string" does not jump out and say, "I violate trademark 
rights!" Whether it does or not must be judged and interpreted. Likewise, whether or not a decision to 
reject a string violates free expression rights requires the same kinds of judgments. Inserting that term 
does not change the level of subjectivity in the slightest.

Finally, it is unfortunate that this needs to be said, but we do need to insist that under the bylaws, policy in the GNSO is made by representatives of constituencies, not by staff. Staff is a facilitator and administrator, not a stakeholder. When constituencies agree--as they seem to have done on this phrase -- it is highly inappropriate for staff to insert their own personal opinion.

-----Original Message-----
From: Robin Gross [mailto:robin@xxxxxxxxxxxxx] Sent: Saturday, June 30, 2007 6:30 PM
To: Milton L Mueller; Liz Williams
Cc: Mawaki; Norbert Klein
Subject: Re: [gtld-council] modifications to new gTLD recommendations #3 and 6


ICANN staff should not be urging council members to reject NCUC proposals - at least not if you want to claim "neutrality" with a straight face.


Liz Williams wrote:


I would urge you to reconsider carefully the second part of this recommendation. Including the second part means that ICANN itself would become part of the objection process. I am not sure that this is what you intend or how that would be measured. Revising the recommendation on the basis of the recommendation below would cause some significant subjectivity being introduced into the process about "infringement and unfairness". Of course ICANN must, in the selection process, operate in accordance with its bylaws and mission and core values.

We have spent a great deal of time on ensuring that we have a pre- published, objective process that is about the applicant and the string.

Kind regards.


Liz Williams
Senior Policy Counselor
ICANN - Brussels
+32 2 234 7874 tel
+32 2 234 7848 fax
+32 497 07 4243 mob

On 29 Jun 2007, at 15:59, Gomes, Chuck wrote:

Regarding Recommendation 3, it seems to me that there are two key
elements: 1) strings that may infringe existing legal rights and 2)  the
selection process that may infringe existing legal rights.  If I am
correct, then we need to include both in this recommendation and I think
we started working in that direction yesterday.

Chuck Gomes

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-----Original Message-----
From: owner-gtld-council@xxxxxxxxxxxxxx
[mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Robin Gross
Sent: Thursday, June 28, 2007 2:14 PM
To: gtld-council@xxxxxxxxxxxxxx
Subject: [gtld-council] modifications to new gTLD
recommendations #3 and 6

NCUC proposes the following modifications to new gTLD
recommendations #3 and 6:

Rec. 3:

The process for selecting strings must not infringe existing
legal rights that are enforceable under internationally
recognized principles of law or the applicant's national law.

Examples of these legal rights that are internationally
recognized include, but are not limited to, rights defined in
the Paris Convention for the Protection of Industrial
Property (in particular trademark rights), the Universal
Declaration of Human Rights and the International Covenant on
Civil and Political Rights (in particular freedom of
expression rights).

Rec 6:

Strings must not be contrary to legal norms that are
enforceable under generally accepted and internationally
recognized principles of law.
Taking into account the aforementioned limitations, no
application shall be rejected solely because the applicant or
string is associated with an unpopular or controversial point of  view.

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