RE: [gtld-council] Recommendation 20: updated text (minor revision)

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Thanks much Philip.  I have just one question: is the term "detriment" a 
recongized legal term?  I believe "material harm" is.  As you know, I am not 
the right person to answer this.  Assuming it is, I am fine with the changes, 
understanding that we will incorporate the 'process' section in the Guidelines.
 
Chuck Gomes
 
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________________________________

        From: owner-gtld-council@xxxxxxxxxxxxxx 
[mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Philip Sheppard
        Sent: Thursday, July 19, 2007 5:51 AM
        To: gtld-council@xxxxxxxxxxxxxx
        Subject: [gtld-council] Recommendation 20: updated text (minor revision)
        
        
        I think the rec20 sub-group has done great work and support the new 
formulation. I just have a issue with the structure. The good point re material 
harm has been inserted under "process". This is the wrong place. It should be 
captured with our own guidelines for "substantial" (meaning in its pure sense 
"having substance, existing, material" - not only measured by volume). So see 
proposed edit below with a cut from process and a new point (h).  
        PS I've substituted detriment rather than "material harm" which is a 
better word in this context.  (And I believe this picks up Mawaki's point too). 
        I hope the committee can adopt this friendly amendment.
        Philip
         

________________________________

        Recommendation 20
        
        
        An application will be rejected if an expert panel determines that 
there is substantial opposition to it from a significant portion of the 
community to which the string may be explicitly or implicitly targeted.
         
        The remainder of the discussion focussed on the following items but is 
not yet complete.
         
        Process

        §  Opposition must be objection based.
        §  Determination will be made by a dispute resolution panel constituted 
for the purpose (perhaps like the RSTEP pool of panelists from which a small 
panel would be constituted for each objection)
        §  The objector must provide verifiable evidence that it is an 
established institution of the community . 
          
         Implementation Guideline -- 

         ( A small information paper is coming out from the Implementation Team 
on the place of public comments in the application evaluation process but there 
may be an automatic response to public comments that will alert public 
commenters to the objection process ) .
         
         
        Guidelines

        The task of the panel is the determination of substantial opposition.
         
        a) substantial
        In determining substantial the panel will assess the following:
        §  significant portion
        §  community
        §  explicit or implicit targeting
        §  established institution
        §  formal existence. 
        §  detriment
         
        b) significant portion:  
        In determining significant portion the panel will assess the balance 
between:
        §  the level of objection submitted by one or more established 
institutions and 
        §  the level of support provided in the application from one or more 
established institutions.
         
        The panel will assess :
        §  significance proportionate to the explicit or implicit targeting. 
         
        c) community
        Community should be interpreted broadly and will include for example an 
economic sector, a cultural community, or a linguistic community. It may also 
be a closely related community which believes it is impacted.
         
        d) explicitly targeted 
        Explicitly targeted means there is a description of the intended use of 
the TLD in the application.  
         
        e) implicitly targeted
        Implicit targeting means that the objector makes an assumption of 
targeting or that the objector believes there may be confusion by users over 
its intended use.
         
        f) established institution
        An institution that has been in formal existence for at least 5 years. 
In exceptional cases, standing may be granted to an institution that has been 
in existence for fewer then 5 years. Exceptional circumstance include but are 
not limited to re-organisation, merger, or an inherently younger community.
         
        The following ICANN organizations are established institutions: GAC, 
ALAC, GNSO, ccNSO, ASO (but this element requires further discussion)
         
        g) formal existence
        Formal existence may be demonstrated by:
        §  appropriate public registration,
        §  public historical evidence, 
        §  validation by a government, intergovernmental organization, 
international treaty organisation or similar.
         
        h) detriment
        Evidence of detriment to the community or to users more widely must be 
provided.
        
        .....................................................