A good point to raise. But I don't believe the request for reconsideration listed THAT as an issue.

No, it is exactly the issue filed for reconsideration. Grounds of Requests: The NCSG Asserted that the Action Resulted in “Staff-Developed Policy.” The NCSG Asserted that the Action Follows “No Known” Policy or Procedure. The NCSG Asserted that the Action Violates the Bylaws Consultation Process and the AoC. Findings of Recommendation P.9 "In our opinion, the fundamental question behind this Request is whether staff’s action was one of implementation of existing policy or the creation of new policy. If the staff action is one of creation of new policy, Reconsideration is well-taken here. If the staff action is one of implementation of existing policy, then ICANN’s processes were followed, and there is no further merit to the Request. As a result, the BGC will consider whether the action is a creation of new policy or implementation of existing policy."

On this issue, I suspect the overall battle is lost, but the issue of whether it should be 50 per trademark/beneficial owner combination, or 50 per entry in the TMCH has not really been discussed and that is an issue that I think we may want to discuss further and one that we might have some traction with.

Agree. I'd very happy to pursue this interesting issue further. Actually

all IP people would be overwhelmed by the potential problems of 50+. Option a) 50+ records in TMCH are the domain name strings (for example yahoosuchs.com or prada-for-sale.com) that had been either transferred or deleted in UDRP proceeds. But, many well-known marks have already won more than 50 UDRP decisions. It is arbitrary to limit to 50. How to limit to 50? Option b) an owner of a mark that has been "abused" in a UDRP proceeding (for example geogle.com) may choose to submit up to 50 "variations" of its marks (for example Gooogle, Gooooooogle, etc). It is definitely arbitrary if variations are subject to the mark holder's choice. Some years ago, CNN claims that CNNIC is confusingly similar to it-:) BUT, UDRP has no finality and its decision may be overruled by the competent court. Shouldn't the final judicial decision count, rather than the UDRP award that has been set aside? AND, UDRP is also applied to a number of ccTLDs. Would 50+ be extended to the UDRP cases regarding ccTLD domain names? TMCH implementation is now completely messy and its two appointed providers are not even ready to handle the "exact mark" (without IDN variants), let alone this 50+. If 50+ is indeed implementation, there still need further guidance or clarifications to enable it. Hong

At 22/05/2013 12:02 AM, Hong Xue wrote:

Irrespective of whether 50+ is policy or implementation, I don't believe the BGC recommendation's interpretation that the "rules of implementation" are solely in the discretion of staff, not subject to the MS participation and supervision, be accurate.

Hong

On Wed, May 22, 2013 at 2:56 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote: At 21/05/2013 01:35 AM, Avri Doria wrote:

...

On 21 May 2013, at 06:40, Alan Greenberg wrote:

...

One of the arguments that registries have made is that this option was already discussed several years ago and was discarded at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the elimination of that option several years ago enshrined NOT doing it in effective policy.

at least not without another PDP to change the policy.

avri

So you are saying that something that was implementation several years ago when discussed during the various versions of the AG, is now policy, and moreover, it would require a PDP to change (not just a GNSO policy process but a formal PDP even though it is not a subject for Consensus Policy as per Bylaws Annex A - "If the GNSO is conducting activities that are not intended to result in a Consensus Policy, the Council may act through other processes.")

Alan

_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac

At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALA...)

-- Professor Dr. Hong Xue Director of Institute for the Internet Policy & Law (IIPL) Beijing Normal University http://www.iipl.org.cn/ 19 Xin Jie Kou Wai Street Beijing 100875 China

-- Professor Dr. Hong Xue Director of Institute for the Internet Policy & Law (IIPL) Beijing Normal University http://www.iipl.org.cn/ 19 Xin Jie Kou Wai Street Beijing 100875 China