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

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

Mawaki,

I must be missing something because it was my understanding that we
already accomplished what you are suggesting.  In particular, the
Guidelines section in IG-P start off like this:

"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, explicitly targeting, implicitly
targeting, established institution, formal existence, detriment."

Then each of the terms is defined.  So isn't clear that the panel would
have to determine whether the objector provided sufficient evidence that
there may be detriment? If the panel was unable to verify the validity
of the detriment from the evidence provided, then they would undoubtedly
reject the complaint.  Similarly, if the panel could not verify from the
evidence provided by the complainant that the extent of the detriment to
the overall community, they would most likely reject the complaint.  On
this latter point, it seems to me that the panel would need to determine
whether or not a "significant portion" of the total community would
experience detriment so it appears that covers your concern about the
extent of detriment.

Chuck Gomes
 
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> -----Original Message-----
> From: owner-gtld-council@xxxxxxxxxxxxxx 
> [mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Mawaki Chango
> Sent: Wednesday, July 25, 2007 2:09 PM
> To: Avri Doria
> Cc: gtld-council@xxxxxxxxxxxxxx
> Subject: Re: [gtld-council] Updated recommendation table - new IGP (h)
> 
> Hi,
> there goes...
> 
> The objector must provide verifiable or supported(1) evidence 
> to allow the panel to determine that there would be a 
> detriment, and the extent thereof(2), to the rights or 
> legitimate interests of the community or to the users more widely. 
> 
> (1) please, if such thing is available, replace by an 
> adjective that would suit (also) the case of prospective 
> detriment or rather actual detriment whose _effects_ will 
> become _material_ only in the future. 
> (2) I think evidence is needed not only to establish 
> detriment, but the extent of such detriment 9may be replaced 
> by a better wording if not Ok.)
> 
> Mawaki
> 
> --- Avri Doria <avri@xxxxxxx> wrote:
> 
> > Hi,
> > 
> > Could you please repeat the exact wording you are offering in
> > 
> > comparison to the wording Philip is offering.  I went through the 
> > previous emails and was not sure exactly what you would 
> prefer to see.
> > 
> > thanks
> > 
> > a.
> > 
> > On 25 jul 2007, at 09.54, Mawaki Chango wrote:
> > 
> > >
> > > --- Philip Sheppard <philip.sheppard@xxxxxx> wrote:
> > >
> > >>
> > >> For clarity,
> > >> it seems we are reaching consensus around this text.
> > >
> > > Do you mean between BC, RyC and IPC?
> > >
> > > 1) I haven't seen any legal specification of the term 
> "likelihood," 
> > > despite the concern I raised.
> > >
> > > 2) I haven't seen any issue or objection raised to the
> > version I
> > > posted previously (or any proposal trying to integrate 
> the suggested 
> > > elements of substance and improve on the version,) including the 
> > > suggestion to insert a phrase about the extent
> > of
> > > detriment.
> > >
> > > 3) Adding the conditional to that - "there would be a
> > likelihood
> > > of detriment" - makes it even worse. I thought what we 
> were aiming 
> > > at was that the evidence must be sufficient (I
> > would've
> > > added, verifiable where relevant) to determine that there
> > will
> > > be a detriment _for sure_ if application granted, the
> > problem
> > > being to determine if the possible detriment outweighs 
> the reasons 
> > > (or possible benefit) for authorizing the TLD, etc.
> > The
> > > current formulation makes it sound like at that point, with
> > and
> > > despite the "sufficient evidence," the panel could only make
> > a
> > > probabilistic determination that, after the TLD is granted, there 
> > > might be, or there might not be, a detriment, and that 
> will then be 
> > > the basis for rejection.
> > >
> > > Which I can't agree to, just for the records if you don't
> > mind.
> > >
> > > Mawaki
> > >
> > >> It has the merit of being ex ante (future).
> > >> It has the merit of using existing legal terminology.
> > >>
> > >> --------------------------------
> > >>
> > >> h) detriment
> > >> 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 users more
> > widely.
> > >>
> > >>
> > >> ---------------------------------
> > >>
> > >>
> > >
> > >
> > 
> > 
> 
>