RE: [gtld-council] Updated recommendation table - new IGP (h)

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

I want to express my personal appreciation for all the excellent thought
and constructive suggestions that have gone into Recommendation 20 and
IG P.  In my opinion, it has been one of the toughest areas to allow for
disputes because it is not possible to tie it to existing law; at the
same time, I believe that it is necessary to allow a process for
objections of this nature.  We probably will see some pushback on what
we end up with but I think we would encounter even more pushback if we
didn't try to address the needs that rec. 20 and IG P are intended to
cover.

That said, I want to say that I think that Kristina's wording looks
quite good to me.  I will defer to the legal experts as to whether
"likelihood" creates too much subjectivity. We certainly want to
minimize subjectively as much as possible but I think that it is not
possible to accomplish that entirely, especially in this case.

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 Mawaki Chango
> Sent: Tuesday, July 24, 2007 1:43 PM
> To: Rosette, Kristina; Philip Sheppard; gtld-council@xxxxxxxxxxxxxx
> Subject: RE: [gtld-council] Updated recommendation table - new IGP (h)
> 
> I don't know if there's a juridical definition for 
> "likelihood", but it's a common word that gives, I'm afraid, 
> the impression that there might be too much room for 
> subjectivity. It doesn't tell me that arguments that would 
> not convince the whole world as establishing "likelihood" 
> will not once conversely be found so by a panel,  depending 
> on the interests at stake and on who is on the panel.
> 
> Mawaki
> 
> --- "Rosette, Kristina" <krosette@xxxxxxx> wrote:
> 
> > I had been thinking along the same lines, but drawing from
> > (surprise)
> > trademark law.  Also, I think it's helpful to move to active voice 
> > where possible so we can be clear about which actor has what
> > responsibility:
> > 
> > The objector must provide sufficient evidence to allow the panel to 
> > determine that there would be a likelihood of detriment to 
> the rights 
> > or legitimate interests of the community or to the users 
> more widely.
> > 
> > Kristina
> > 
> > -----Original Message-----
> > From: owner-gtld-council@xxxxxxxxxxxxxx 
> > [mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Philip 
> > Sheppard
> > Sent: Tuesday, July 24, 2007 10:49 AM
> > To: gtld-council@xxxxxxxxxxxxxx
> > Subject: [gtld-council] Updated recommendation table - new IGP
> > (h)
> > 
> > 
> > An alternative wording that may find common ground is to 
> use a phrase 
> > from civil law "the balance of probability."
> > This makes more sense in an ex ante case such as this.
> > 
> > so:
> > 
> > h) detriment
> > Evidence must be provided to allow the panel to assess that on the 
> > balance of probability there would be detriment to the rights or 
> > interests, of the community or to users more widely.
> > 
> > Philip
> > 
> > 
> > 
> > 
> > 
> 
>