RE: [gtld-council] proposed new Rec. #21

[Mawaki Chango <ki_chango@xxxxxxxxx>]

Now it seems to me that we are mixing implementation language
with policy language. It seemed to me that the intent of the
policy we have agreed on, following NCUC-proposed amendment, is
to let the community know that decisions about strings, _if
any_, will take into encount or will not infringe pre-existing
rights that are enforceable and widely recognized.

"If any" is the key phrase.

Now of course, it depends on what level of the process and what
entity/authority will get to make that decision, if relevant;
this is a policy item under which that authority will have to
work. It may be that in a "normal" application process and
evaluation, there will not be at all the need to make a decision
about the string (because out of ICANN's - board and staff -
purview) until an objection or challenge is filed. Then and only
then, the relevant authority for string challenges (an expert
panel?) will proceed under the guiding of this policy
recommendation. But we may not need this level of detail in the
policy rule. A more general level of language such as "approval
or rejection of a string must not infringe, etc." is clear
enough and a good fit for a policy.

Now, if one wants to make sure that this is only a challenge
process issue, not ICANN's as organization (Board or staff - and
that's the meaning of the term 'ICANN' hereafter), one may want
the new gTLD policy to make allowance for the following:

1. Make sure that it is clear in the overall new gTLD policy
that ICANN do not have to, and will not make decision about an
application string, except for purely technical reasons related
to the DNS operation;

2. In that sense and as long as ICANN is concerned, any string
criteria policy pertains to technical creiteria policy and
should be dealt with in the relevant policy recommendations;

3. Then and beyond the above, ensure that the consideration of
any challenge/objection to the string by the relevant authority
(e.g., expert panel?), while trying to do justice to the
challenger (e.g., trademark holder) do not infringe the rights
of the applicant whenever they exist and as recognized under
international principles of law.

In a nutshell, the best way to avoid further exposing the
organization ICANN to string-related disputes is first to make
it clear that it is not in the business of approving or
rejecting TLD strings per se. It then means these issues will be
dealt with by a different and _independent_ mechanism or entity
from ICANN, in conditions that are agreeable to both parties.

I'm not expressing any preference, but just exploring the
logical options for what we want to achieve.

Mawaki 
   

--- "Gomes, Chuck" <cgomes@xxxxxxxxxxxx> wrote:

> Hopefully our criteria for filing objections will be as clear
> as
> possible so we can minimize challenges that will not have
> merit, but the
> reality is that there will probably be some, so it seems
> important to
> make sure that we are explicit about how the dispute panels
> evaluate all
> challenges. If my understanding is correct, if a rights
> challenge is
> submitted, the panel would evaluate the challenge based on all
> rights
> that are based on international principles of law.  For
> example, if a
> string was challenged because of IP rights, that challenge
> must be
> evaluated based not just on IP rights contained in
> international
> principles of law but also would be weighed relative to other
> rights
> contained in international principles of law to the extent
> that rights
> may conflict.  Is that consistent with what others think?
> 
> Chuck Gomes
>  
> "This message is intended for the use of the individual or
> entity to
> which it is addressed, and may contain information that is
> privileged,
> confidential and exempt from disclosure under applicable law.
> Any
> unauthorized use, distribution, or disclosure is strictly
> prohibited. If
> you have received this message in error, please notify sender
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>  
> 
> > -----Original Message-----
> > From: Robin Gross [mailto:robin@xxxxxxxxxxxxx] 
> > Sent: Tuesday, July 03, 2007 10:08 AM
> > To: Gomes, Chuck
> > Cc: gtld-council@xxxxxxxxxxxxxx; Milton Mueller
> > Subject: Re: [gtld-council] proposed new Rec. #21
> > 
> > Thanks Chuck.   Rec #21 does not create any different 
> > exposure for the 
> > board than Rec #3 does.
> > 
> > We are trying to narrow the types of objections that can
> send 
> > an applicant to an expert panel.  Those objections based 
> > solely on viewpoint would not go an expert panel because
> that 
> > would not respect existing legal rights.
> > 
> > Robin
> > 
> > Gomes, Chuck wrote:
> > 
> > >Thanks Robin.
> > >
> > >It seems to me that this wording may go counter to one of
> the 
> > >objectives we have pursued for a long time on the New gTLD 
> > Committee, 
> > >that is to attempt to not put the ICANN Board in a
> situtation where 
> > >they are overly exposed to risk.  I understand Milton's 
> > point that it 
> > >may be impossible to limit all risk in that regard because 
> > they are the 
> > >overall coordinator of the process.  But I still think we 
> > should try to 
> > >minimize their exposure.  In that regard, would the 
> > following word work for you.
> > >
> > >"The expert panel tasked with evaluating any string
> challenges filed 
> > >must weigh an applicant's freedom of expression rights as 
> > contained in 
> > >internationally recognized principles of law."
> > >
> > >I suspect others may be able to word this better than me, 
> > but my goal 
> > >is focus on the what the expert panel would need to do
> rather than 
> > >focus on the over all string selection process.
> > >
> > >Chuck Gomes
> > > 
> > >"This message is intended for the use of the individual or
> entity to 
> > >which it is addressed, and may contain information that is 
> > privileged, 
> > >confidential and exempt from disclosure under applicable
> law. Any 
> > >unauthorized use, distribution, or disclosure is strictly 
> > prohibited. 
> > >If you have received this message in error, please notify
> sender 
> > >immediately and destroy/delete the original transmission."
> > > 
> > >
> > >  
> > >
> > >>-----Original Message-----
> > >>From: owner-gtld-council@xxxxxxxxxxxxxx 
> > >>[mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of
> Robin Gross
> > >>Sent: Tuesday, July 03, 2007 8:42 AM
> > >>To: gtld-council@xxxxxxxxxxxxxx
> > >>Cc: Milton Mueller
> > >>Subject: [gtld-council] proposed new Rec. #21
> > >>
> > >>How about the following for a proposed new Rec #21?
> > >>
> > >>"The string evaluation process must not infringe the
> applicant's 
> > >>freedom of expression rights that are enforceable under 
> > >>internationally recognized principles of law."
> > >>
> > >>Thanks,
> > >>Robin
> > >>    
> > >>
> > >
> > >  
> > >
> > 
> > 
> 
>