Meeting to discuss TMCH Implementation as well as possible changed to the TM protections

Nov. 17, 2012

      As you are aware, a meeting was held in Brussels 
several weeks ago to discuss implementation 
issues for the Trademark Clearinghouse (TMCH). 
The meeting included representatives of the GNSO 
Stakeholder Groups and Constituencies, but not 
At-Large. On Thursday and Friday of this week, a 
follow-on meeting was held in Los Angeles. In 
addition to a discussion of many of the technical 
issues related to the TMCH, a full day was spend 
discussing a list of issues that had been 
presented to ICANN by the GNSO Business and 
Intellectual Property Constituencies 
(http://www.icann.org/en/news/correspondence/ncsg-to-icann-01nov12-en.pdf). 
This time At-Large was represented (unfortunately 
only remotely as no travel funding was provided). 
I had the honour of participating along with Evan.

The first day on the BC/IPC issues was both 
interesting and productive. The intent was:

1. To fully understand what it was that the BC 
and IPC were asking for. The original document 
was not particularly clear, and in fact, the 
BC/IPC have spent the weeks following Toronto fleshing out their ideas.

2. To understand whether these issues were in 
fact just implementation (as the BC/IPC) 
believed, or Policy, which should be addressed by 
GNSO Policy processes. The issue has been much 
discussed within ICANN, but the difference has 
never been formally addressed before. Staff were 
charged with starting to develop a methodology 
for making such decisions in the future. Although 
the work is still preliminary, it was used to 
analyze the more controversial of the BC/IPC 
proposals, and the outcome matched that of the 
discussions within ALAC. They were all deemed to 
be Policy and thus required GNSO action to 
formally change the status quo (a relief to some 
at the table, and troubling to others).

3. To brainstorm the issues raised by the BC/IPC 
and see if any solutions could be found to 
address the issues that concerned them which at 
the same time might be acceptable to the other 
stakeholders. After a rather harrowing day (12 
solid hours, followed by another 2 hours on 
Friday) the result was a strawman proposal. The 
proposal completely pleased none of the people 
involved, which some people say is a good measure 
of a reasonable compromise. Regardless, it is a 
good start for more traditional community-based 
discussions which now have to happen.

ALAC's first position was that we would prefer to 
not have new policy changes in the new TLD 
program at this late date. However we also did 
look at the individual issues as discussed in a 
message I sent earlier this week. The resultant 
strawman proposal actually fits in moderately 
well with the positions that ALAC took. Of 
course, this is not yet a formal policy and there 
are many details to be developed. This is perhaps 
not surprising, as many of the ALAC positions to 
protect innocent Internet users coincide well 
with TM holders desire to prevent cyber-squatting 
and fraud, and the over-reaching that some 
attribute to TM holders (that is, wanting 
protections far an above those granted by the TM 
itself) were to some extent held in control.

I have to note that this type of focus group is 
not an unknown way to try to bridge widely 
disparate positions, but it is a very uncommon 
one in ICANN, and one that some people have said 
violates the bottom up multi-stakeholder model of 
ICANN. It does bear some similarity to the STI 
group which many herald as one of the more 
effective ICANN policy efforts. It also re-opened 
issues that the community (well, part of the 
community including At-Large) had thought or 
hoped were closed issues. Whether it was an 
effective move or not history will tell. One of 
the measures that I have is how quickly we can 
convene a more formal ICANN process to refine and 
actually approve a policy coming out of this proposal.

After Toronto, ICANN CEO Fadi Chehadé had said 
that he considers the TMCH to be a critical issue 
and would personally oversee its implementation. 
True to his word, he personally ran the 14 hours 
of meetings. It was interesting!

I will elaborate (as perhaps will Evan) more in 
the coming days on some of the high and low 
points of the meeting, but this will have to do 
for the moment. Today I was on the call for over 
8 hours, and yesterday including a GNSO meeting 
starting at 6 am and one other WG, I totaled 15 
hours of teleconferences. So it is perhaps time 
for a bit of rest and relaxation.

You can find the initial description of outcomes 
of the meeting at 
http://blog.icann.org/2012/11/trademark-clearinghouse-update/.

Alan

Alan Greenberg

Hong Xue

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