October 2009 - Bc-gnso - lists.icann.org

Re: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3
by Phil Corwin Oct. 26, 2009

Oct. 26, 2009

With all due respect, if the BC's efforts are devoted to trying to revert to the IRT proposals rather than trying to find common ground with those who opposed them (as Zahid is commendably trying to achieve) the result is likely to be an inability to achieve GNSO consensus and the Board's default adoption of the staff assimilations that no one seems happy with. Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell "Luck is the residue of design." -- Branch Rickey ________________________________ From: owner-bc-gnso(a)icann.org <owner-bc-gnso(a)icann.org> To: Deutsch, Sarah B <sarah.b.deutsch(a)verizon.com>; mike(a)rodenbaugh.com <mike(a)rodenbaugh.com>; Marilyn Cade <marilynscade(a)hotmail.com>; Liz Williams <lizawilliams(a)mac.com>; Zahid Jamil <zahid(a)dndrc.com> Cc: bc - GNSO list <bc-gnso(a)icann.org> Sent: Mon Oct 26 03:09:17 2009 Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Colleagues, While I am not in Seoul so cannot gauge the dynamics, I suggest that the BC advocate adoption of the IRT's recommendations in their entirety. Thanks, David From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Deutsch, Sarah B Sent: Sunday, October 25, 2009 6:09 PM To: mike(a)rodenbaugh.com; Marilyn Cade; Liz Williams; Zahid Jamil Cc: bc - GNSO list Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Merely requiring a registry to offer a sunrise period is actually worse than the status quo given that trademark owners' defensive registration costs will skyrocket in direct proportion to the number of new TLDs introduced. The URS was one way to avoid such costs. But the URS as proposed by the IRT was only a partial solution unless trademark owners also have the right to request back the transfer of valuable domain names into their portfolio. For such valuable domain names, trademark owners will face increased litigation costs to win back the names, or be placed in a perpetual monitoring situation, also increasing costs. But, as Mike says, if the URS is a so-called "best practice," it will be mere window dressing and trademark owners will be left without any practical remedy. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 sarah.b.deutsch(a)verizon.com ________________________________ From: Mike Rodenbaugh [mailto:mike@rodenbaugh.com] Sent: Sunday, October 25, 2009 3:20 AM To: 'Marilyn Cade'; 'Liz Williams'; 'Zahid Jamil'; Deutsch, Sarah B Cc: 'bc - GNSO list' Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Eager to hear opinions of Sarah or any other experts. I have quite a lot of experience with that myself, of course. Also, I’ve realized just now that the IRT itself did NOT recommend that all domain registrations be checked against the Clearinghouse database, so long as the registry enacts a sunrise perios, and so the URS is enacted and mandatory. Thus Staff has not watered down that aspect of the proposal, except that they have proposed that the URS be denominated a ‘best practice’ rather than a mandatory requirement. I strongly believe that both elements must be mandatory, and urge that as the BC position. Obviously, allowing registries to offer only a sunrise period, and no other RPMs for trademark owners, is no improvement whatsoever over the previous rollouts of TLDs. Of course it will be very difficult to get consensus to something even more stringent than recommended by the IRT, but I think we need to try. A fallback option is to require registries to do Clearinghouse lookups, and provide URS, in order to get the new ‘high security zone’ designation. But my gut feel on that initiative is that it is worthless, few registrants will care, thus few contract parties will care. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087<http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer…> http://rodenbaugh.com<http://rodenbaugh.com/> From: Marilyn Cade [mailto:marilynscade@hotmail.com] Sent: Saturday, October 24, 2009 11:58 PM To: Mike Rodenbaugh; Liz Williams; Zahid Jamil; Sarah Deutsch Cc: bc - GNSO list Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Have the actual brand holders from large BC members agreed with that perspective? I've added Sarah, who is an expert on these issues -- I think that there was a few that there needed to be a number of safeguards, not only one or two. ________________________________ From: icann(a)rodenbaugh.com To: lizawilliams(a)mac.com; zahid(a)dndrc.com CC: bc-gnso(a)icann.org Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Date: Sat, 24 Oct 2009 22:53:10 -0700 Thanks Zahid. Just want to note my strong opinion that, if the Clearinghouse must be checked against every domain registrations, with conflicts resulting in notice to the applicant, and the URS is mandatory for all new TLD registries, then I believe there will be sufficient protections such that TM owners will not be forced to defensively register their marks. Interested to hear if anyone has a different view, and their reasoning, as I expect the BC will develop a position statement that includes these key points. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087<http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer…> http://rodenbaugh.com<http://rodenbaugh.com/> From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Liz Williams Sent: Saturday, October 24, 2009 8:54 PM To: Zahid Jamil Cc: bc-gnso(a)icann.org Subject: Re: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Zahid Thanks very much for this analysis. It is always disturbing when months of community time and organisational resources are of questionable value. It also points again to the difficulty of trying to do what is essentially policy development outside of the normal policy development channels but that is a debate for another day. However, what is your suggestion for a way forward? You make a "scream about it" note at the end but that most likely won't be very productive. It seems to be that the Board is going to be required to be the final decision maker given it is highly unlikely that the Council will reach consensus -- given that lack of consensus was the whole reason why the IRT was established anyway. Following Ron's request for items for tonight's meeting, I suggest that the strategy forward is the subject of tonight's huddle at 6pm in the bar. Gin and tonic will be required! Liz On 25 Oct 2009, at 02:10, Zahid Jamil wrote: This document was prepared for a meeting held yesterday between the IRT and Staff (Kurt, Dan) and a Board Member (Bruce). Here are some points that may interest members: The outcome from Staff in the DAG3 (http://www.icann.org/en/topics/new-gtlds/dag-en.htm) and those mentioned on for Rights Protection Mechanism (http://www.icann.org/en/public-comment/#prpm-new-gtlds -difficult to find on the website and not connected to the DAG3’s website) DO NOT REFLCT the IRT Recommendations. It seems that the Staff has completely reengineered the solutions. To a large extent even though the title of the solution may be the same but the contents are effectively not what the IRT recommended. So to give members a feel of the process and what Staff acknowledged in yesterday’s meeting: Focusing on 5 Solutions: 1. Reserved List (GPML) 2. Central IP Database (IP Clearinghouse) 3. Rapid Suspension (URSS) 4. Rights holders right to take a Registry through a Dispute Resolution after the gTLD is launched (Post Delegation Dispute Resolution Procedure PDDRP) 5. Thick Whois Eg. 1 - So for instance, in regards PDDRP: There were no comments from the community The Board agreed at the higher level to a PDDRP In my view this would have mean that Staff would go ahead and incorporate the IRT solution (maybe just maybe filling in some holes) into DAG3 or the Rights Protection Mechanism. This wasn’t the case. Instead the staff completely changed the PDDRP (see Jeff Neuman’s article http://www.circleid.com/members/2921/ ) So as I put in the meeting yesterday Staff swapped the cards on the IRT, the community, and the Board! (But since this was too tricky they didn’t let this go to the GNSO) In short the IRT had recommended that: Standard for Asserting a Claim – 3 types: (a) The Registry Operator’s manner of operation or use of a TLD is inconsistent with the representations made in the TLD application as approved by ICANN and incorporated into the applicable Registry Agreement and such operation or use of the TLD is likely to cause confusion with the complainant’s mark; or (b) The Registry Operator is in breach of the specific rights protection mechanisms enumerated in such Registry Operator’s Agreement and such breach is likely to cause confusion with complainant’s mark; or (c) The Registry Operator manner of operation or use of the TLD exhibits a bad faith intent to profit from the systemic registration of domain name registrations therein, which are identical or confusingly similar to the complainant’s mark, meeting any of the following conditions: (i) taking unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (ii) unjustifiably impairing the distinctive character or the reputation of the complainant’s mark, or (iii) creating an impermissible likelihood of confusion with Complainant’s mark. For a Registry Operator to be liable for toplevel infringement, a complainant must assert and prove by clear and convincing evidence that the Registry Operator’s affirmative conduct in its operation or use of its gTLD, that is identical or confusingly similar to the complainant’s mark, causes or materially contributes to the gTLD: (a) taking unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (b) unjustifiably impairing the distinctive character or the reputation of the complainant’s mark, or (c) creating an impermissible likelihood of confusion with the complainant’s mark. For a Registry Operator to be liable for the conduct at the second level, the complainant must assert and prove by clear and convincing evidence: (a) that there is substantial ongoing pattern or practice of specific bad faith intent by the registry operator to profit from the sale of trademark infringing domain names; and (b) of the registry operator’s bad faith intent to profit from the systematic registration of domain names within the gTLD, that are identical or confusingly similar to the complainant’s mark, which: (i) takes unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (ii) unjustifiably impairs the distinctive character or the reputation of the complainant’s mark, or (iii) creates an impermissible likelihood of confusion with the complainant’s mark. In this regard, it would not be nearly enough to show that the registry operator was on notice of possible of trademark infringement through registrations in the gTLD. So basically if a Rights holder or a community that doesn’t object at the application stage since the representations in the Application and the Registry Agreement seem fine has no recourse subsequently to assert and challenge in case there is a breach of the Registry Agreement or those representations in the application. ICANN staff’s response was: we will independently deal with enforcement brought to our notice. Basically trust us to enforce Registry contracts. Eg. 2 - In regards the URSS: ICANN staff has changed the Rapid Suspension from MANDATORY to BEST PRACTICE Also delinked URSS from the GPML and Clearing House “The Guidebook proposal does not mention a pre‐registration process utilizing the Clearinghouse” And since the Board was advised that this seems more like Policy the Board has sent a letter to the GNSO to either: a) approve the staff model (details of which can be found here http://www.icann.org/en/topics/new‐gtlds/gnso‐consultations‐reports‐en.htm) which is an assimilation of the IRT work and Board concerns), or b) propose an alternative that is equivalent or more effective and implementable. A six weeks window has been allowed. This basically means that if GNSO cannot reach consensus then Staff Model is likely to go through The IRT proposals thus have been side tracked and swapped. Example 3 – Reserved List (GPML) It’s just gone – Staff had said that they would complete their research (about strongest global brands- get data about global brands and see how many countries these brands are registered in) and then come back – but the GPML was just removed – no explanation and without completing this study. SO NO RESERVED LIST – AND NO SOLUTION TO DEFENSIVE REGISTRATIONS! Generally: In response to protestations Kurt said in regards some aspects ‘you’re preaching to the converted’ and generally said ‘go ahead and scream about it’ – basically do what the Non commercials are doing. Similarly Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 5680760 / 5685276 / 5655025 Fax: +92 21 5655026 www.jamilandjamil.com<http://www.jamilandjamil.com/> Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: owner-bc-gnso(a)icann.org<mailto:owner-bc-gnso@icann.org> [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Sunday, October 25, 2009 7:19 AM To: bc-gnso(a)icann.org<mailto:bc-gnso@icann.org> Subject: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Further fyi, re STI (“Specified TM Issues”). Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087<http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer…> http://rodenbaugh.com<http://rodenbaugh.com/> From: owner-gnso-sti(a)icann.org<mailto:owner-gnso-sti@icann.org> [mailto:owner-gnso-sti@icann.org] On Behalf Of Margie Milam Sent: Saturday, October 24, 2009 6:01 PM To: Council GNSO; gnso-sti(a)icann.org<mailto:gnso-sti@icann.org> Subject: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Dear All, As we discussed yesterday, attached is a document that summarizes the key differences between the IRT and the Applicant Guidebook Version 3. This matrix seeks to succinctly present areas of contrast and briefly explain the rationale for the differences. Please review this draft and let me know whether there is any other information that should be included to facilitate the GNSO’s work on the Board request. Best regards, Margie Milam Senior Policy Counselor ICANN This message and its attachments may contain legally privileged or confidential information. It is intended solely for the named addressee. If you are not the addressee indicated in this message (or responsible for delivery of the message to the addressee), you may not copy or deliver this message or its attachments to anyone. Rather, you should permanently delete this message and its attachments and kindly notify the sender by reply e-mail. Any content of this message and its attachments that does not relate to the official business of News America Incorporated or its subsidiaries must be taken not to have been sent or endorsed by any of them. No representation is made that this email or its attachments are without defect.

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20% of resolutions!???!
by Steve DelBianco Oct. 26, 2009

Oct. 26, 2009

In the Rr/Ry separation session Richard (eNom) said, ³Registry sees only 20% of resolutions due to cached nature of lookups.² But hold on, the Ry sees 100% of non-existing records from type-in traffic. And THAT¹S the data that Registrars want desperately. THAT¹S why they used to use AGP to taste names for 5 days to see what kind of type-in traffic landed there. Isn¹t eNom just trying to find an innovative way to replace Domain Name tasting?

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RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3
by Deutsch, Sarah B Oct. 26, 2009

Oct. 26, 2009

Merely requiring a registry to offer a sunrise period is actually worse than the status quo given that trademark owners' defensive registration costs will skyrocket in direct proportion to the number of new TLDs introduced. The URS was one way to avoid such costs. But the URS as proposed by the IRT was only a partial solution unless trademark owners also have the right to request back the transfer of valuable domain names into their portfolio. For such valuable domain names, trademark owners will face increased litigation costs to win back the names, or be placed in a perpetual monitoring situation, also increasing costs. But, as Mike says, if the URS is a so-called "best practice," it will be mere window dressing and trademark owners will be left without any practical remedy. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 sarah.b.deutsch(a)verizon.com ________________________________ From: Mike Rodenbaugh [mailto:mike@rodenbaugh.com] Sent: Sunday, October 25, 2009 3:20 AM To: 'Marilyn Cade'; 'Liz Williams'; 'Zahid Jamil'; Deutsch, Sarah B Cc: 'bc - GNSO list' Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Eager to hear opinions of Sarah or any other experts. I have quite a lot of experience with that myself, of course. Also, I’ve realized just now that the IRT itself did NOT recommend that all domain registrations be checked against the Clearinghouse database, so long as the registry enacts a sunrise perios, and so the URS is enacted and mandatory. Thus Staff has not watered down that aspect of the proposal, except that they have proposed that the URS be denominated a ‘best practice’ rather than a mandatory requirement. I strongly believe that both elements must be mandatory, and urge that as the BC position. Obviously, allowing registries to offer only a sunrise period, and no other RPMs for trademark owners, is no improvement whatsoever over the previous rollouts of TLDs. Of course it will be very difficult to get consensus to something even more stringent than recommended by the IRT, but I think we need to try. A fallback option is to require registries to do Clearinghouse lookups, and provide URS, in order to get the new ‘high security zone’ designation. But my gut feel on that initiative is that it is worthless, few registrants will care, thus few contract parties will care. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087 <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer…> http://rodenbaugh.com <http://rodenbaugh.com/> From: Marilyn Cade [mailto:marilynscade@hotmail.com] Sent: Saturday, October 24, 2009 11:58 PM To: Mike Rodenbaugh; Liz Williams; Zahid Jamil; Sarah Deutsch Cc: bc - GNSO list Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Have the actual brand holders from large BC members agreed with that perspective? I've added Sarah, who is an expert on these issues -- I think that there was a few that there needed to be a number of safeguards, not only one or two. ________________________________ From: icann(a)rodenbaugh.com To: lizawilliams(a)mac.com; zahid(a)dndrc.com CC: bc-gnso(a)icann.org Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Date: Sat, 24 Oct 2009 22:53:10 -0700 Thanks Zahid. Just want to note my strong opinion that, if the Clearinghouse must be checked against every domain registrations, with conflicts resulting in notice to the applicant, and the URS is mandatory for all new TLD registries, then I believe there will be sufficient protections such that TM owners will not be forced to defensively register their marks. Interested to hear if anyone has a different view, and their reasoning, as I expect the BC will develop a position statement that includes these key points. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087 <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer…> http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Liz Williams Sent: Saturday, October 24, 2009 8:54 PM To: Zahid Jamil Cc: bc-gnso(a)icann.org Subject: Re: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Zahid Thanks very much for this analysis. It is always disturbing when months of community time and organisational resources are of questionable value. It also points again to the difficulty of trying to do what is essentially policy development outside of the normal policy development channels but that is a debate for another day. However, what is your suggestion for a way forward? You make a "scream about it" note at the end but that most likely won't be very productive. It seems to be that the Board is going to be required to be the final decision maker given it is highly unlikely that the Council will reach consensus -- given that lack of consensus was the whole reason why the IRT was established anyway. Following Ron's request for items for tonight's meeting, I suggest that the strategy forward is the subject of tonight's huddle at 6pm in the bar. Gin and tonic will be required! Liz On 25 Oct 2009, at 02:10, Zahid Jamil wrote: This document was prepared for a meeting held yesterday between the IRT and Staff (Kurt, Dan) and a Board Member (Bruce). Here are some points that may interest members: The outcome from Staff in the DAG3 (http://www.icann.org/en/topics/new-gtlds/dag-en.htm) and those mentioned on for Rights Protection Mechanism (http://www.icann.org/en/public-comment/#prpm-new-gtlds -difficult to find on the website and not connected to the DAG3’s website) DO NOT REFLCT the IRT Recommendations. It seems that the Staff has completely reengineered the solutions. To a large extent even though the title of the solution may be the same but the contents are effectively not what the IRT recommended. So to give members a feel of the process and what Staff acknowledged in yesterday’s meeting: Focusing on 5 Solutions: 1. Reserved List (GPML) 2. Central IP Database (IP Clearinghouse) 3. Rapid Suspension (URSS) 4. Rights holders right to take a Registry through a Dispute Resolution after the gTLD is launched (Post Delegation Dispute Resolution Procedure PDDRP) 5. Thick Whois Eg. 1 - So for instance, in regards PDDRP: There were no comments from the community The Board agreed at the higher level to a PDDRP In my view this would have mean that Staff would go ahead and incorporate the IRT solution (maybe just maybe filling in some holes) into DAG3 or the Rights Protection Mechanism. This wasn’t the case. Instead the staff completely changed the PDDRP (see Jeff Neuman’s article http://www.circleid.com/members/2921/ ) So as I put in the meeting yesterday Staff swapped the cards on the IRT, the community, and the Board! (But since this was too tricky they didn’t let this go to the GNSO) In short the IRT had recommended that: Standard for Asserting a Claim – 3 types: (a) The Registry Operator’s manner of operation or use of a TLD is inconsistent with the representations made in the TLD application as approved by ICANN and incorporated into the applicable Registry Agreement and such operation or use of the TLD is likely to cause confusion with the complainant’s mark; or (b) The Registry Operator is in breach of the specific rights protection mechanisms enumerated in such Registry Operator’s Agreement and such breach is likely to cause confusion with complainant’s mark; or (c) The Registry Operator manner of operation or use of the TLD exhibits a bad faith intent to profit from the systemic registration of domain name registrations therein, which are identical or confusingly similar to the complainant’s mark, meeting any of the following conditions: (i) taking unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (ii) unjustifiably impairing the distinctive character or the reputation of the complainant’s mark, or (iii) creating an impermissible likelihood of confusion with Complainant’s mark. For a Registry Operator to be liable for toplevel infringement, a complainant must assert and prove by clear and convincing evidence that the Registry Operator’s affirmative conduct in its operation or use of its gTLD, that is identical or confusingly similar to the complainant’s mark, causes or materially contributes to the gTLD: (a) taking unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (b) unjustifiably impairing the distinctive character or the reputation of the complainant’s mark, or (c) creating an impermissible likelihood of confusion with the complainant’s mark. For a Registry Operator to be liable for the conduct at the second level, the complainant must assert and prove by clear and convincing evidence: (a) that there is substantial ongoing pattern or practice of specific bad faith intent by the registry operator to profit from the sale of trademark infringing domain names; and (b) of the registry operator’s bad faith intent to profit from the systematic registration of domain names within the gTLD, that are identical or confusingly similar to the complainant’s mark, which: (i) takes unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (ii) unjustifiably impairs the distinctive character or the reputation of the complainant’s mark, or (iii) creates an impermissible likelihood of confusion with the complainant’s mark. In this regard, it would not be nearly enough to show that the registry operator was on notice of possible of trademark infringement through registrations in the gTLD. So basically if a Rights holder or a community that doesn’t object at the application stage since the representations in the Application and the Registry Agreement seem fine has no recourse subsequently to assert and challenge in case there is a breach of the Registry Agreement or those representations in the application. ICANN staff’s response was: we will independently deal with enforcement brought to our notice. Basically trust us to enforce Registry contracts. Eg. 2 - In regards the URSS: ICANN staff has changed the Rapid Suspension from MANDATORY to BEST PRACTICE Also delinked URSS from the GPML and Clearing House “The Guidebook proposal does not mention a pre‐registration process utilizing the Clearinghouse” And since the Board was advised that this seems more like Policy the Board has sent a letter to the GNSO to either: a) approve the staff model (details of which can be found here http://www.icann.org/en/topics/new‐gtlds/gnso‐consultations‐reports‐en.htm) which is an assimilation of the IRT work and Board concerns), or b) propose an alternative that is equivalent or more effective and implementable. A six weeks window has been allowed. This basically means that if GNSO cannot reach consensus then Staff Model is likely to go through The IRT proposals thus have been side tracked and swapped. Example 3 – Reserved List (GPML) It’s just gone – Staff had said that they would complete their research (about strongest global brands- get data about global brands and see how many countries these brands are registered in) and then come back – but the GPML was just removed – no explanation and without completing this study. SO NO RESERVED LIST – AND NO SOLUTION TO DEFENSIVE REGISTRATIONS! Generally: In response to protestations Kurt said in regards some aspects ‘you’re preaching to the converted’ and generally said ‘go ahead and scream about it’ – basically do what the Non commercials are doing. Similarly Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 5680760 / 5685276 / 5655025 Fax: +92 21 5655026 www.jamilandjamil.com <http://www.jamilandjamil.com/> Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Sunday, October 25, 2009 7:19 AM To: bc-gnso(a)icann.org Subject: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Further fyi, re STI (“Specified TM Issues”). Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087 <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer…> http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-gnso-sti(a)icann.org [mailto:owner-gnso-sti@icann.org] On Behalf Of Margie Milam Sent: Saturday, October 24, 2009 6:01 PM To: Council GNSO; gnso-sti(a)icann.org Subject: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Dear All, As we discussed yesterday, attached is a document that summarizes the key differences between the IRT and the Applicant Guidebook Version 3. This matrix seeks to succinctly present areas of contrast and briefly explain the rationale for the differences. Please review this draft and let me know whether there is any other information that should be included to facilitate the GNSO’s work on the Board request. Best regards, Margie Milam Senior Policy Counselor ICANN

3 3

Breakfast
by philip.sheppard＠aim.be Oct. 26, 2009

Oct. 26, 2009

Stakeholder Group Breakfast tomorrow morning at 8:00 until 10:00 in Belle-Vue, Level 36.

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FW: ALAC & BC - can we find common ground on RPMs?
by Zahid Jamil Oct. 26, 2009

Oct. 26, 2009

Dear All, There have been indications from the ALAC that they may be able to find common ground with Business interests in connection the Rights Protection Mechanisms. Have sent them informal email below to see if we can find some common ground to help with the response of the GNSO to the Board’s letter with respect to URSS and IP Clearing house. Am hoping to remain optimistic but realise that there may be detractors on their side so will be cautious. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 5680760 / 5685276 / 5655025 Fax: +92 21 5655026 <http://www.jamilandjamil.com/> www.jamilandjamil.com Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: Zahid Jamil [mailto:zahid@dndrc.com] Sent: Monday, October 26, 2009 11:17 AM To: 'Cheryl Langdon-Orr' Subject: RE: ALAC & BC - can we find common ground on RPMs? Dear Cheryl, Here are my comments for circulation to your ALAC: The Commercial Business Users Constituency has been and remains concerned about the inadequacy of Rights Protection Mechanisms with respect to the New gTLDs Program. The recent development of the Board Letter to the GNSO and the Staff Proposals for 3 RPMs (URSS, IP Clearing house and Post Delegation). The BC had made a statement supporting the IRT report as going in the right direction although many in the BC thought it may have not gone far enough and some may have had reservations. However, the Staff versions of the RPMs are seen as being nowhere near adequacy. In fact in my personal interactions with many who may have had divergent views regarding the IRT solutions, there seems agreement that the Staff proposals are probably even more tenable. It seems from the Board letter that the Staff recommendations are the default and if the GNSO cannot achieve consensus the staff proposals may be what the Board is left with to implement. I am hoping that possibly the GNSO may be able to achieve some common ground and ward off such a result. I am therefore attempting to see if the ALAC would be willing to informally discuss possibly reaching common ground so we can together and possibly with other in the GNSO hopefully build a consensus on the issues. In this regard here very briefly are some thoughts we may consider in terms of the Rights Protection issues in new gTLDs (beyond just the Board letter to the GNSO): The IRT suggested 5 Solutions: 1. Reserved List (GPML) 2. Central IP Database (IP Clearinghouse) 3. Rapid Suspension (URSS) 4. Rights holders right to take a Registry through a Dispute Resolution after the gTLD is launched (Post Delegation Dispute Resolution Procedure PDDRP) 5. Thick Whois - this was included in the DAG3 However, the outcome from Staff in the DAG3 ( <http://www.icann.org/en/topics/new-gtlds/dag-en.htm> http://www.icann.org/en/topics/new-gtlds/dag-en.htm) and those mentioned in the Staff Rights Protection Mechanism Proposals ( <http://www.icann.org/en/public-comment/#prpm-new-gtlds> http://www.icann.org/en/public-comment/#prpm-new-gtlds only URS & IP Clearing house-difficult to find on the website and not connected to the DAG3’s website) DO NOT REFLCT the IRT Recommendations. One RPM ie the Post Delegation Dispute Resolution Policy difficult to find from the main page is available on <http://icann.org/en/topics/new-gtlds/comments-3-en.htm#files> http://icann. org/en/topics/new-gtlds/comments-3-en.htm#files up for public comments. This I believe is an important RPM and seems to have had less exposure to public discussion and possibly will therefore attract little public comment. I would suggest that we highlight this RPM as well (not being distracted simply by IP Clearing house and URSS) and also comment on this RPM. So of the 5 solutions the GNSO letter only puts forward 2: GPML seems to not have moved much forward and dropped without completing the research that ICANN Staff had promised - (irrespective of whether this was an acceptable solution or not the decision should have followed after such a study had been made public). Thus, the problem of DEFENSIVE REGISTATIONS still remains UNADDRESSED in the DAG3 and the Staff Proposed Rights Protection Mechanisms. Post Delegation has not been sent to the GNSO in the Board letter. Instead the staff version has been put up for public comments at <http://icann.org/en/topics/new-gtlds/comments-3-en.htm#files> http://icann. org/en/topics/new-gtlds/comments-3-en.htm#files (I believe this version does not provide adequate remedies with respect to Rights holders and even communities) Here’s a comparison: From IRT Recommendation: Standard for Asserting a Claim - 3 types: (a) The Registry Operator’s manner of operation or use of a TLD is inconsistent with the representations made in the TLD application as approved by ICANN and incorporated into the applicable Registry Agreement and such operation or use of the TLD is likely to cause confusion with the complainant’s mark; or (b) The Registry Operator is in breach of the specific rights protection mechanisms enumerated in such Registry Operator’s Agreement and such breach is likely to cause confusion with complainant’s mark; or (c) The Registry Operator manner of operation or use of the TLD exhibits a bad faith intent to profit from the systemic registration of domain name registrations therein, which are identical or confusingly similar to the complainant’s mark, meeting any of the following conditions: (i) taking unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (ii) unjustifiably impairing the distinctive character or the reputation of the complainant’s mark, or (iii) creating an impermissible likelihood of confusion with Complainant’s mark. From Staff Proposal up for Comments: For a Registry Operator to be liable for toplevel infringement, a complainant must assert and prove by clear and convincing evidence that the Registry Operator’s affirmative conduct in its operation or use of its gTLD, that is identical or confusingly similar to the complainant’s mark, causes or materially contributes to the gTLD: (a) taking unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (b) unjustifiably impairing the distinctive character or the reputation of the complainant’s mark, or (c) creating an impermissible likelihood of confusion with the complainant’s mark. For a Registry Operator to be liable for the conduct at the second level, the complainant must assert and prove by clear and convincing evidence: (a) that there is substantial ongoing pattern or practice of specific bad faith intent by the registry operator to profit from the sale of trademark infringing domain names; and (b) of the registry operator’s bad faith intent to profit from the systematic registration of domain names within the gTLD, that are identical or confusingly similar to the complainant’s mark, which: (i) takes unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (ii) unjustifiably impairs the distinctive character or the reputation of the complainant’s mark, or (iii) creates an impermissible likelihood of confusion with the complainant’s mark. In this regard, it would not be nearly enough to show that the registry operator was on notice of possible of trademark infringement through registrations in the gTLD. So basically if a Rights holders or a community (if that is allowed) doesn’ t object at the application stage possibly taking comfort from the representations in the Application and the Registry Agreement they have no recourse subsequently to assert and challenge under this Proposal, in case there is a breach of those representations or the Registry Agreement in the application. The use of the words ‘affirmative conduct’ in the Staff proposal to my mind imply that TM owners can only trigger Post Delegation if there is clear and convincing proof that the Registry Operator actually and positively acted in a manner as described. However, this leaves open omission and recklessness or turning a ‘blind eye’ to systemic abuse on the gTLD. Moreover, if there is a change in the nature of use of the gTLD in breach of the representations made in the new gTLD application or the Registry Agreement (which the IRT had recommendation had addressed), the TM Owner / aggrieved party cannot trigger a Post Delegation Dispute Resolution. So there seems no protection awarded to TM Owners and even communities (if this is allowed) in case any of this happens once the gTLD has been delegated. Staff’s response to this issue has been - ‘Registry Agreement is a bilateral contract and ICANN would enforce it’ - basically we should trust ICANN to enforce the Registry Agreements. In regards the URS: ICANN staff has changed the Rapid Suspension from MANDATORY to BEST PRACTICE Also delinked URSS from the Clearing House. Staff admits that “The Guidebook proposal does not mention a pre‐registration process utilizing the Clearinghouse” And since the Board was advised that this seems more like Policy the Board has sent a letter to the GNSO to either: a) approve the staff model (details of which can be found here http://www.icann.org/en/topics/new‐gtlds/gnso‐consultations‐reports‐ en.htm), which is an assimilation of the IRT work and Board concerns), or b) propose an alternative that is equivalent or more effective and implementable. A six weeks window has been allowed. This basically means that if GNSO cannot reach consensus then Staff Model is likely to go through. It would help to see if we can reach common ground on the URSS being a fair, due process, quick, cost effective and balanced process and also see if we can reach common ground as to which cases will it apply. The intent, I believe, was that it apply to egregious or clear cut cases of cyber squatting and related malicious abuse (I paraphrase). So if we can agree through maybe a list of illustrations or some other means what that means to all sides then we would have been able to move forward together. Sorry for the rushed note. I hope to be able also provide more insight on the IP Clearing house some time later - just pressed for time so sending this out to you asap. I would welcome the possibility to informally meet with ALAC reps to see if we can find common ground. It is vital that we reject the Staff Model as it stands at the moment. Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 5680760 / 5685276 / 5655025 Fax: +92 21 5655026 <http://www.jamilandjamil.com/> www.jamilandjamil.com Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited.

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CSG agenda
by philip.sheppard＠aim.be Oct. 26, 2009

Oct. 26, 2009

Based on some ISP and IPC input please note a small revision to the CSG agenda. ------------------------- 1. Unresolved issues for new gTLDs: IRT recommendations, anti-malicious conduct, Q&A Kurt Pritz & Doug Brent (lead IPC) 2. R&R separation / dot brand : do we have a joint view? (lead ISP) 3. How do we work towards policy and other coordination within the CSG? (lead BC) 4 Abstentions Wolf Ulrich 5. APWG - RR

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Revised BC agenda Seoul
by philip.sheppard＠aim.be Oct. 26, 2009

Oct. 26, 2009

A slight revision as a function on discussions that have been running in Seoul. ------------------- 1. Contractual compliance role in addressing malicious conduct as part of the new gTLD program - Q&A David Giza, Compliance 15 min 2. Unresolved issues new TLDS IRT and GNSO work Zahid Draft guidebook 3 Mike 3. Charter remaining issue 4. Council chair and vice chair - folo-on from CSG 5. Progress anti-abuse mechanisms Mike 6. Oversight: AOC Philip 7. Larger BC members and the e-mail list 8. Secretariat

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NetChoice blog post from Seoul ICANN meeting
by Steve DelBianco Oct. 26, 2009

Oct. 26, 2009

My first post form ICANN meeting, regarding IDN fast track and the Guitar hero. http://blog.netchoice.org -- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482

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Monday Night Huddle in Seoul
by Ron Andruff Oct. 25, 2009

Oct. 25, 2009

Hello everyone, The nightly huddles are becoming an effective method for catching up on the various dialogues we are having with other community members, discussing the hot issues of the day and strategizing a way forward vis-à-vis how we best manage goals we set to best serve the Business Constituency members. For those who have just arrived here in Seoul, we meet at days end (tonight at 18:00) in the lobby bar and look forward to seeing you. For those who are following remotely, if there are issues you would like us to discuss or pursue, please send them through to me and I will be sure to bring them to the attention of those on site. Looking forward to seeing everyone again this evening. Kind regards, RA Ronald N. Andruff RNA Partners, Inc. 220 Fifth Avenue, 20th floor New York, New York 10001 www.rnapartners.com V: +1 212 481 2820 x 11 F: +1 212 481 2859

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Message from Mike Roberts
by BC Secretariat Oct. 25, 2009

Oct. 25, 2009

Posted on behalf of Mike Roberts Dear Colleagues - I am heading off to Seoul today as your elected representative to the 2010 NomCom. As noted in a previous message, I would appreciate hearing from you with regard to both your views on how to improve the NomCom process, as well as your suggestions for candidates to be recruited. I have not yet seen a message from staff with regard to the openings to be filled, but will pass that along when I do. I hope to talk to a number of you face to face in Seoul. Best regards, - Mike Roberts

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FW: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3
by Mike Rodenbaugh Oct. 25, 2009

Oct. 25, 2009

Eager to hear opinions of Sarah or any other experts. I have quite a lot of experience with that myself, of course. Also, I’ve realized just now that the IRT itself did NOT recommend that all domain registrations be checked against the Clearinghouse database, so long as the registry enacts a sunrise perios, and so the URS is enacted and mandatory. Thus Staff has not watered down that aspect of the proposal, except that they have proposed that the URS be denominated a ‘best practice’ rather than a mandatory requirement. I strongly believe that both elements must be mandatory, and urge that as the BC position. Obviously, allowing registries to offer only a sunrise period, and no other RPMs for trademark owners, is no improvement whatsoever over the previous rollouts of TLDs. Of course it will be very difficult to get consensus to something even more stringent than recommended by the IRT, but I think we need to try. A fallback option is to require registries to do Clearinghouse lookups, and provide URS, in order to get the new ‘high security zone’ designation. But my gut feel on that initiative is that it is worthless, few registrants will care, thus few contract parties will care. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: Marilyn Cade [mailto:marilynscade@hotmail.com] Sent: Saturday, October 24, 2009 11:58 PM To: Mike Rodenbaugh; Liz Williams; Zahid Jamil; Sarah Deutsch Cc: bc - GNSO list Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Have the actual brand holders from large BC members agreed with that perspective? I've added Sarah, who is an expert on these issues -- I think that there was a few that there needed to be a number of safeguards, not only one or two. _____ From: icann(a)rodenbaugh.com To: lizawilliams(a)mac.com; zahid(a)dndrc.com CC: bc-gnso(a)icann.org Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Date: Sat, 24 Oct 2009 22:53:10 -0700 Thanks Zahid. Just want to note my strong opinion that, if the Clearinghouse must be checked against every domain registrations, with conflicts resulting in notice to the applicant, and the URS is mandatory for all new TLD registries, then I believe there will be sufficient protections such that TM owners will not be forced to defensively register their marks. Interested to hear if anyone has a different view, and their reasoning, as I expect the BC will develop a position statement that includes these key points. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Liz Williams Sent: Saturday, October 24, 2009 8:54 PM To: Zahid Jamil Cc: bc-gnso(a)icann.org Subject: Re: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Zahid Thanks very much for this analysis. It is always disturbing when months of community time and organisational resources are of questionable value. It also points again to the difficulty of trying to do what is essentially policy development outside of the normal policy development channels but that is a debate for another day. However, what is your suggestion for a way forward? You make a "scream about it" note at the end but that most likely won't be very productive. It seems to be that the Board is going to be required to be the final decision maker given it is highly unlikely that the Council will reach consensus -- given that lack of consensus was the whole reason why the IRT was established anyway. Following Ron's request for items for tonight's meeting, I suggest that the strategy forward is the subject of tonight's huddle at 6pm in the bar. Gin and tonic will be required! Liz On 25 Oct 2009, at 02:10, Zahid Jamil wrote: This document was prepared for a meeting held yesterday between the IRT and Staff (Kurt, Dan) and a Board Member (Bruce). Here are some points that may interest members: The outcome from Staff in the DAG3 (http://www.icann.org/en/topics/new-gtlds/dag-en.htm) and those mentioned on for Rights Protection Mechanism (http://www.icann.org/en/public-comment/#prpm-new-gtlds -difficult to find on the website and not connected to the DAG3’s website) DO NOT REFLCT the IRT Recommendations. It seems that the Staff has completely reengineered the solutions. To a large extent even though the title of the solution may be the same but the contents are effectively not what the IRT recommended. So to give members a feel of the process and what Staff acknowledged in yesterday’s meeting: Focusing on 5 Solutions: 1. Reserved List (GPML) 2. Central IP Database (IP Clearinghouse) 3. Rapid Suspension (URSS) 4. Rights holders right to take a Registry through a Dispute Resolution after the gTLD is launched (Post Delegation Dispute Resolution Procedure PDDRP) 5. Thick Whois Eg. 1 - So for instance, in regards PDDRP: There were no comments from the community The Board agreed at the higher level to a PDDRP In my view this would have mean that Staff would go ahead and incorporate the IRT solution (maybe just maybe filling in some holes) into DAG3 or the Rights Protection Mechanism. This wasn’t the case. Instead the staff completely changed the PDDRP (see Jeff Neuman’s article http://www.circleid.com/members/2921/ ) So as I put in the meeting yesterday Staff swapped the cards on the IRT, the community, and the Board! (But since this was too tricky they didn’t let this go to the GNSO) In short the IRT had recommended that: Standard for Asserting a Claim - 3 types: (a) The Registry Operator’s manner of operation or use of a TLD is inconsistent with the representations made in the TLD application as approved by ICANN and incorporated into the applicable Registry Agreement and such operation or use of the TLD is likely to cause confusion with the complainant’s mark; or (b) The Registry Operator is in breach of the specific rights protection mechanisms enumerated in such Registry Operator’s Agreement and such breach is likely to cause confusion with complainant’s mark; or (c) The Registry Operator manner of operation or use of the TLD exhibits a bad faith intent to profit from the systemic registration of domain name registrations therein, which are identical or confusingly similar to the complainant’s mark, meeting any of the following conditions: (i) taking unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (ii) unjustifiably impairing the distinctive character or the reputation of the complainant’s mark, or (iii) creating an impermissible likelihood of confusion with Complainant’s mark. For a Registry Operator to be liable for toplevel infringement, a complainant must assert and prove by clear and convincing evidence that the Registry Operator’s affirmative conduct in its operation or use of its gTLD, that is identical or confusingly similar to the complainant’s mark, causes or materially contributes to the gTLD: (a) taking unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (b) unjustifiably impairing the distinctive character or the reputation of the complainant’s mark, or (c) creating an impermissible likelihood of confusion with the complainant’s mark. For a Registry Operator to be liable for the conduct at the second level, the complainant must assert and prove by clear and convincing evidence: (a) that there is substantial ongoing pattern or practice of specific bad faith intent by the registry operator to profit from the sale of trademark infringing domain names; and (b) of the registry operator’s bad faith intent to profit from the systematic registration of domain names within the gTLD, that are identical or confusingly similar to the complainant’s mark, which: (i) takes unfair advantage of the distinctive character or the reputation of the complainant’s mark, or (ii) unjustifiably impairs the distinctive character or the reputation of the complainant’s mark, or (iii) creates an impermissible likelihood of confusion with the complainant’s mark. In this regard, it would not be nearly enough to show that the registry operator was on notice of possible of trademark infringement through registrations in the gTLD. So basically if a Rights holder or a community that doesn’t object at the application stage since the representations in the Application and the Registry Agreement seem fine has no recourse subsequently to assert and challenge in case there is a breach of the Registry Agreement or those representations in the application. ICANN staff’s response was: we will independently deal with enforcement brought to our notice. Basically trust us to enforce Registry contracts. Eg. 2 - In regards the URSS: ICANN staff has changed the Rapid Suspension from MANDATORY to BEST PRACTICE Also delinked URSS from the GPML and Clearing House “The Guidebook proposal does not mention a pre‐registration process utilizing the Clearinghouse” And since the Board was advised that this seems more like Policy the Board has sent a letter to the GNSO to either: a) approve the staff model (details of which can be found here http://www.icann.org/en/topics/new‐gtlds/gnso‐consultations‐reports‐ en.htm), which is an assimilation of the IRT work and Board concerns), or b) propose an alternative that is equivalent or more effective and implementable. A six weeks window has been allowed. This basically means that if GNSO cannot reach consensus then Staff Model is likely to go through The IRT proposals thus have been side tracked and swapped. Example 3 - Reserved List (GPML) It’s just gone - Staff had said that they would complete their research (about strongest global brands- get data about global brands and see how many countries these brands are registered in) and then come back - but the GPML was just removed - no explanation and without completing this study. SO NO RESERVED LIST - AND NO SOLUTION TO DEFENSIVE REGISTRATIONS! Generally: In response to protestations Kurt said in regards some aspects ‘you’re preaching to the converted’ and generally said ‘go ahead and scream about it’ - basically do what the Non commercials are doing. Similarly Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 5680760 / 5685276 / 5655025 Fax: +92 21 5655026 <http://www.jamilandjamil.com/> www.jamilandjamil.com Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Sunday, October 25, 2009 7:19 AM To: bc-gnso(a)icann.org Subject: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Further fyi, re STI (“Specified TM Issues”). Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-gnso-sti(a)icann.org [mailto:owner-gnso-sti@icann.org] On Behalf Of Margie Milam Sent: Saturday, October 24, 2009 6:01 PM To: Council GNSO; gnso-sti(a)icann.org Subject: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Dear All, As we discussed yesterday, attached is a document that summarizes the key differences between the IRT and the Applicant Guidebook Version 3. This matrix seeks to succinctly present areas of contrast and briefly explain the rationale for the differences. Please review this draft and let me know whether there is any other information that should be included to facilitate the GNSO’s work on the Board request. Best regards, Margie Milam Senior Policy Counselor ICANN

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RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3
by Marilyn Cade Oct. 25, 2009

Oct. 25, 2009

very few of the proposed registries are likely to want 'high security zone'. From: mike(a)rodenbaugh.com To: marilynscade(a)hotmail.com; lizawilliams(a)mac.com; zahid(a)dndrc.com; sarah.deutsch(a)verizon.com CC: bc-gnso(a)icann.org Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Date: Sun, 25 Oct 2009 00:20:14 -0700 Eager to hear opinions of Sarah or any other experts. I have quite a lot of experience with that myself, of course. Also, I��ve realized just now that the IRT itself did NOT recommend that all domain registrations be checked against the Clearinghouse database, so long as the registry enacts a sunrise perios, and so the URS is enacted and mandatory. Thus Staff has not watered down that aspect of the proposal, except that they have proposed that the URS be denominated a ��best practice�� rather than a mandatory requirement. I strongly believe that both elements must be mandatory, and urge that as the BC position. Obviously, allowing registries to offer only a sunrise period, and no other RPMs for trademark owners, is no improvement whatsoever over the previous rollouts of TLDs. Of course it will be very difficult to get consensus to something even more stringent than recommended by the IRT, but I think we need to try. A fallback option is to require registries to do Clearinghouse lookups, and provide URS, in order to get the new ��high security zone�� designation. But my gut feel on that initiative is that it is worthless, few registrants will care, thus few contract parties will care. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087 http://rodenbaugh.com From: Marilyn Cade [mailto:marilynscade@hotmail.com] Sent: Saturday, October 24, 2009 11:58 PM To: Mike Rodenbaugh; Liz Williams; Zahid Jamil; Sarah Deutsch Cc: bc - GNSO list Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Have the actual brand holders from large BC members agreed with that perspective? I've added Sarah, who is an expert on these issues -- I think that there was a few that there needed to be a number of safeguards, not only one or two. From: icann(a)rodenbaugh.com To: lizawilliams(a)mac.com; zahid(a)dndrc.com CC: bc-gnso(a)icann.org Subject: RE: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Date: Sat, 24 Oct 2009 22:53:10 -0700 Thanks Zahid. Just want to note my strong opinion that, if the Clearinghouse must be checked against every domain registrations, with conflicts resulting in notice to the applicant, and the URS is mandatory for all new TLD registries, then I believe there will be sufficient protections such that TM owners will not be forced to defensively register their marks. Interested to hear if anyone has a different view, and their reasoning, as I expect the BC will develop a position statement that includes these key points. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087 http://rodenbaugh.com From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Liz Williams Sent: Saturday, October 24, 2009 8:54 PM To: Zahid Jamil Cc: bc-gnso(a)icann.org Subject: Re: Scoop on TM Rights Protection in new gTLDs - RE: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Zahid Thanks very much for this analysis. It is always disturbing when months of community time and organisational resources are of questionable value. It also points again to the difficulty of trying to do what is essentially policy development outside of the normal policy development channels but that is a debate for another day. However, what is your suggestion for a way forward? You make a "scream about it" note at the end but that most likely won't be very productive. It seems to be that the Board is going to be required to be the final decision maker given it is highly unlikely that the Council will reach consensus -- given that lack of consensus was the whole reason why the IRT was established anyway. Following Ron's request for items for tonight's meeting, I suggest that the strategy forward is the subject of tonight's huddle at 6pm in the bar. Gin and tonic will be required! Liz On 25 Oct 2009, at 02:10, Zahid Jamil wrote: This document was prepared for a meeting held yesterday between the IRT and Staff (Kurt, Dan) and a Board Member (Bruce). Here are some points that may interest members: The outcome from Staff in the DAG3 (http://www.icann.org/en/topics/new-gtlds/dag-en.htm) and those mentioned on for Rights Protection Mechanism (http://www.icann.org/en/public-comment/#prpm-new-gtlds -difficult to find on the website and not connected to the DAG3��s website) DO NOT REFLCT the IRT Recommendations. It seems that the Staff has completely reengineered the solutions. To a large extent even though the title of the solution may be the same but the contents are effectively not what the IRT recommended. So to give members a feel of the process and what Staff acknowledged in yesterday��s meeting: Focusing on 5 Solutions: 1. Reserved List (GPML) 2. Central IP Database (IP Clearinghouse) 3. Rapid Suspension (URSS) 4. Rights holders right to take a Registry through a Dispute Resolution after the gTLD is launched (Post Delegation Dispute Resolution Procedure PDDRP) 5. Thick Whois Eg. 1 - So for instance, in regards PDDRP: There were no comments from the community The Board agreed at the higher level to a PDDRP In my view this would have mean that Staff would go ahead and incorporate the IRT solution (maybe just maybe filling in some holes) into DAG3 or the Rights Protection Mechanism. This wasn��t the case. Instead the staff completely changed the PDDRP (see Jeff Neuman��s article http://www.circleid.com/members/2921/ ) So as I put in the meeting yesterday Staff swapped the cards on the IRT, the community, and the Board! (But since this was too tricky they didn��t let this go to the GNSO) In short the IRT had recommended that: Standard for Asserting a Claim �C 3 types: (a) The Registry Operator��s manner of operation or use of a TLD is inconsistent with the representations made in the TLD application as approved by ICANN and incorporated into the applicable Registry Agreement and such operation or use of the TLD is likely to cause confusion with the complainant��s mark; or (b) The Registry Operator is in breach of the specific rights protection mechanisms enumerated in such Registry Operator��s Agreement and such breach is likely to cause confusion with complainant��s mark; or (c) The Registry Operator manner of operation or use of the TLD exhibits a bad faith intent to profit from the systemic registration of domain name registrations therein, which are identical or confusingly similar to the complainant��s mark, meeting any of the following conditions: (i) taking unfair advantage of the distinctive character or the reputation of the complainant��s mark, or (ii) unjustifiably impairing the distinctive character or the reputation of the complainant��s mark, or (iii) creating an impermissible likelihood of confusion with Complainant��s mark. For a Registry Operator to be liable for toplevel infringement, a complainant must assert and prove by clear and convincing evidence that the Registry Operator��s affirmative conduct in its operation or use of its gTLD, that is identical or confusingly similar to the complainant��s mark, causes or materially contributes to the gTLD: (a) taking unfair advantage of the distinctive character or the reputation of the complainant��s mark, or (b) unjustifiably impairing the distinctive character or the reputation of the complainant��s mark, or (c) creating an impermissible likelihood of confusion with the complainant��s mark. For a Registry Operator to be liable for the conduct at the second level, the complainant must assert and prove by clear and convincing evidence: (a) that there is substantial ongoing pattern or practice of specific bad faith intent by the registry operator to profit from the sale of trademark infringing domain names; and (b) of the registry operator��s bad faith intent to profit from the systematic registration of domain names within the gTLD, that are identical or confusingly similar to the complainant��s mark, which: (i) takes unfair advantage of the distinctive character or the reputation of the complainant��s mark, or (ii) unjustifiably impairs the distinctive character or the reputation of the complainant��s mark, or (iii) creates an impermissible likelihood of confusion with the complainant��s mark. In this regard, it would not be nearly enough to show that the registry operator was on notice of possible of trademark infringement through registrations in the gTLD. So basically if a Rights holder or a community that doesn��t object at the application stage since the representations in the Application and the Registry Agreement seem fine has no recourse subsequently to assert and challenge in case there is a breach of the Registry Agreement or those representations in the application. ICANN staff��s response was: we will independently deal with enforcement brought to our notice. Basically trust us to enforce Registry contracts. Eg. 2 - In regards the URSS: ICANN staff has changed the Rapid Suspension from MANDATORY to BEST PRACTICE Also delinked URSS from the GPML and Clearing House ��The Guidebook proposal does not mention a pre�\registration process utilizing the Clearinghouse�� And since the Board was advised that this seems more like Policy the Board has sent a letter to the GNSO to either: a) approve the staff model (details of which can be found here http://www.icann.org/en/topics/new�\gtlds/gnso�\consultations�\reports�\en.…) which is an assimilation of the IRT work and Board concerns), or b) propose an alternative that is equivalent or more effective and implementable. A six weeks window has been allowed. This basically means that if GNSO cannot reach consensus then Staff Model is likely to go through The IRT proposals thus have been side tracked and swapped. Example 3 �C Reserved List (GPML) It��s just gone �C Staff had said that they would complete their research (about strongest global brands- get data about global brands and see how many countries these brands are registered in) and then come back �C but the GPML was just removed �C no explanation and without completing this study. SO NO RESERVED LIST �C AND NO SOLUTION TO DEFENSIVE REGISTRATIONS! Generally: In response to protestations Kurt said in regards some aspects ��you��re preaching to the converted�� and generally said ��go ahead and scream about it�� C basically do what the Non commercials are doing. Similarly Sincerely, Zahid Jamil Barrister-at-law Jamil & Jamil Barristers-at-law 219-221 Central Hotel Annexe Merewether Road, Karachi. Pakistan Cell: +923008238230 Tel: +92 21 5680760 / 5685276 / 5655025 Fax: +92 21 5655026 www.jamilandjamil.com Notice / Disclaimer This message contains confidential information and its contents are being communicated only for the intended recipients . If you are not the intended recipient you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this message by mistake and delete it from your system. The contents above may contain/are the intellectual property of Jamil & Jamil, Barristers-at-Law, and constitute privileged information protected by attorney client privilege. The reproduction, publication, use, amendment, modification of any kind whatsoever of any part or parts (including photocopying or storing it in any medium by electronic means whether or not transiently or incidentally or some other use of this communication) without prior written permission and consent of Jamil & Jamil is prohibited. From: owner-bc-gnso(a)icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Sunday, October 25, 2009 7:19 AM To: bc-gnso(a)icann.org Subject: [bc-gnso] FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Further fyi, re STI (��Specified TM Issues��). Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087 http://rodenbaugh.com From: owner-gnso-sti(a)icann.org [mailto:owner-gnso-sti@icann.org] On Behalf Of Margie Milam Sent: Saturday, October 24, 2009 6:01 PM To: Council GNSO; gnso-sti(a)icann.org Subject: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Dear All, As we discussed yesterday, attached is a document that summarizes the key differences between the IRT and the Applicant Guidebook Version 3. This matrix seeks to succinctly present areas of contrast and briefly explain the rationale for the differences. Please review this draft and let me know whether there is any other information that should be included to facilitate the GNSO��s work on the Board request. Best regards, Margie Milam Senior Policy Counselor ICANN

2 1

FW: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3
by Mike Rodenbaugh Oct. 25, 2009

Oct. 25, 2009

Further fyi, re STI ("Specified TM Issues"). Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-gnso-sti(a)icann.org [mailto:owner-gnso-sti@icann.org] On Behalf Of Margie Milam Sent: Saturday, October 24, 2009 6:01 PM To: Council GNSO; gnso-sti(a)icann.org Subject: [Bulk] [gnso-sti] Draft Summary of Differences Between IRT Report and Applicant Guidebook Version 3 Dear All, As we discussed yesterday, attached is a document that summarizes the key differences between the IRT and the Applicant Guidebook Version 3. This matrix seeks to succinctly present areas of contrast and briefly explain the rationale for the differences. Please review this draft and let me know whether there is any other information that should be included to facilitate the GNSO's work on the Board request. Best regards, Margie Milam Senior Policy Counselor ICANN

5 9

FW: [bc-gnso] FW: [council] Confirmation of new practice at face to face open council meetings
by Mike Rodenbaugh Oct. 25, 2009

Oct. 25, 2009

Hi Liz, I appreciate the thinking here, but still believe it is not scalable. It is clearly appropriate for any Councilor to allow anyone else to speak on their or their Constituency's behalf during a Council meeting for a limited time or purpose. Councilors can also raise comments or questions posed by others, of course. Just like I can forward an email from any constituent to the Council email list. Input from members is ALWAYS welcome, it just ought not be input directly to Council for many hopefully obvious reasons. All, I will not be responding further to the recent email from Mike Palage or Ron Andruff on this topic, as sufficient response is contained in my prior email to this List, today and previously. Namely, Michael Palage's 'conflict of interest' allegation was earlier raised by George Kirikos, and I consider it frivolous for the reasons stated during that interchange, particularly that any purported conflict was fully disclosed long before my last election, and has no impact on my efforts on behalf of the BC. The email from Ron also overlooks the fact that I have been elected to represent the BC on Council. While I appreciate the desire to always speak one's mind openly at Council meetings, the Council appears nearly unanimous that this privilege is not scalable, not fair, has caused detriment to the efficiency and output of the Council, and therefore has been discontinued. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: Liz Williams [mailto:lizawilliams@mac.com] Sent: Saturday, October 24, 2009 8:03 PM To: icann(a)rodenbaugh.com Cc: bc-gnso(a)icann.org Subject: Re: [bc-gnso] FW: [council] Confirmation of new practice at face to face open council meetings Hello Mike I'm sympathetic to the issues you've raised particularly as the weekend sessions are really working drafting sessions. I've had some experience of this in other environments and would like to suggest a middle ground which may help over-worked Councillors. We have proposed an Issue Manager/Rapporteur system in the new Charter and I suggest that anyone who volunteers to do work on issues (whatever they are) ought to be at the table as well. This helps new members/volunteers become experienced at dealing with a wide range of issues in great detail. It is also a supportive position for the Councillors. It spreads the work around and also maximises the use of different skills in the group (for example, some are better on technical issues than legal drafting or intellectual property or competition). For example, it would probably work something like (and I'll use me as a hypothetical) this. 1. Councillors are at the table supported by me (the Issue Manager) on ABC issue. 2. Issue Manager is responsible for the scribing/writing/presentation of materials. 3. Councillors are there to link different issues and positions together and take that to Council. This strengthens our work with diverse voices and volunteers taking responsibility who are "rewarded" with a seat the table. Best wishes. Liz On 25 Oct 2009, at 01:18, Mike Rodenbaugh wrote: Fyi below from the Council Chair, in response to the attached email string begun by me, and subsequent discussion of Council this morning. I have had these very strong feelings for a long time now, and various less formal efforts to remedy the situation have not been effective. The Council appears nearly unanimous in support of the concept that Councilors should be given every opportunity to speak at Council meetings, and any public comment periods within the weekend meetings will be structured more as they are in the large public Council meetings held on Wednesday of the ICANN meetings. This is an effort to make Council more efficient, and to allow Councilors to do their jobs without constant interruptions from non-representative individuals. Of course, there are many other opportunities for such individuals to voice their comments and questions through the GNSO's bottom-up, open and transparent policy development practices, including the BC's internal practices. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087 http://rodenbaugh.com -----Original Message----- From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Avri Doria Sent: Saturday, October 24, 2009 5:37 PM To: Council GNSO Subject: [council] Confirmation of new practice at face to face open council meetings Hi. After this mornings meeting I wanted to confirm several actions that I took away from the meeting: 1. the seats at the table for open council meetings will be reserved for council members, liaisons and relevant staff. Chair, vice-chair (s) and staff will request that others take the observers seats. For future meetings name placards will be requested to those to be seated at the table. 2. the observers will be requested to queue at the microphones, and the chair will be responsible for giving them the floor at appropriate points, though precedence for speaking will be given to those around the table. 3. any further changes to the practices at open meetings will be discussed by the new council at its discretion. Please let me know if I have misinterpreted the will of that meeting. a. From: "Gomes, Chuck" <cgomes(a)verisign.com> Date: 24 October 2009 23:50:08 BST To: <icann(a)rodenbaugh.com>, "GNSO Council" <council(a)gnso.icann.org> Subject: RE: [council] End of the Shadow Council Thanks Mike. Maybe we will have time to discuss this in our breakfast meeting. Chuck _____ From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh Sent: Saturday, October 24, 2009 5:42 PM To: GNSO Council Subject: RE: [council] End of the Shadow Council Hi Chuck, This is not a policy development issue, but instead is administrative. I have twice been elected to represent the BC in Council administrative matters. Specifically per our Charter section 4.1, "[t]he representatives will act in the GNSO Council as representatives of and spokespersons for the Constituency and will collaborate with other members of the Council in pursuit of the mission of the Constituency." I am only trying to discontinue an unwarranted privilege by which unrepresentative persons increasingly usurp the role of representative Councilors and Liaisons, and which unduly takes time from the entire Council and Staff. Do you have any reasoned argument against this? Thanks, Mike Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> (415) 738-8087 <http://rodenbaugh.com/> http://rodenbaugh.com From: Gomes, Chuck [mailto:cgomes@verisign.com] Sent: Saturday, October 24, 2009 2:15 PM To: icann(a)rodenbaugh.com; GNSO Council Subject: RE: [council] End of the Shadow Council Mike, Is this a CBUC request? Chuck _____ From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh Sent: Saturday, October 24, 2009 4:42 PM To: GNSO Council Subject: [council] End of the Shadow Council Dear Colleagues, I write again regarding the so-called "Observers" at face-to-face GNSO Council meetings. Of course, I fully support that our face-to-face meetings are generally always open to true observers, both those present and located remotely. And I fully support that all of our meetings are generally fully recorded and transcribed. Indeed I think they should be translated, and that our conference calls be opened in real time to the public, with non-speaking access. I fully support that our email list is open and archived. All of this allows the public to see how the Council operates in practically real-time, and to experience the information and debate first-hand. Council must have flexibility to close its sessions and/or communicate privately, when it deems necessary for any stated and agreed reason. But I believe that has never happened to date, and of course the default must be open meetings and open communications. However, the growing trend is for GNSO "Observers" to participate in the Council's weekend face-to-face meetings on equal footing with Councilors, Liasons and Staff. A small and growing group of privileged observers, none of whom are elected or appointed to represent anyone but themselves and/or their specific organizations, are increasingly taking an inordinate amount of Council and Staff time. In effect, they are a "Shadow Council" that follows the Council from meeting to meeting, taking advantage of a privilege they ought not have. This must stop, effective immediately. It is not scalable as the community of interested observers grows and diversifies. It is not fair in any way: n Not fair to Councilors and Liasons who offer great personal sacrifice to travel long distances away from their lives, volunteering an overly full weekend in advance of a lengthy five-day meeting. n Not fair to the constituents who elected or appointed the Councilors and Liasons, expecting that they (and only they) would serve as those constituents' representatives on Council. n Not fair to the general public whose only opportunities for input to Council are via the Constituencies, Working Groups or public comment periods. Particularly not fair to the general public that does not speak English, or who cannot attend the sessions, as they have no equal ability to participate vis a vis the "Shadow Council". n Not fair to the Staff nor the Council as a whole, whose only opportunity to communicate face-to-face is during these meetings. The GNSO Council is a representative body. The representative Councilors and designated Liaisons must be allowed to do their jobs, which absolutely requires face-to-face interaction with Staff and with each other -- without constant 'clarifying questions', 'points of order', comments or questions from the public. To my knowledge, no other SO, nor the GAC nor the Board - nor any other council, committee or board anywhere in the world -- ever allow such privilege to observers. Such points should be raised through Council representatives, or during any or all of the many opportunities for public comment into the Council processes. Indeed this is the reason-for-being of the Constituencies themselves, of Working Groups, of public comment periods in general, and of the public comment periods allowed at the Council's face-to-face meetings (which can also be used in our weekend sessions, if time allows). Therefore, beginning with the newTLD session today, I request that observers be disallowed equal access to the Council table and microphones, just as they are disallowed such access at our larger public meetings and in our conference calls. The material presented by Staff in the session today will doubtless be repeated during a public session later in the week, which is a perfect opportunity for anyone to ask their questions or make their points directly to the Staff, without wasting tremendously valuable and scarce face-to-face Council/Staff time. As we have seen, too many people are abusing the privilege of open access to raise points that they then raise again and again at every opportunity throughout the ICANN meeting, and/or to communicate their particular, non-representative interests. They are abusing a privilege that they should not have in the first place, because it is not fair. Does anyone have an argument as to why the current privilege should be allowed to continue? Is anyone aware of any other council, board or committee, anywhere in the world, that allows such a privilege to observers? Otherwise, I hope the privilege will be discontinued immediately, and request Avri to confirm via reply to this list. If not, my next effort to stop this will be an Ombudsman complaint, on behalf of the entire community, so that this practice is investigated by a neutral party and discussed formally at the Council and/or Board level(s). I also request that the relevant OSC team discuss this and recommend appropriate provisions in our Council Rules of Procedure to ensure that nobody is given undue and disruptive access to Council, Liaisons and Staff during our meetings. Each and every member of the community - other than the "Shadow Councilors" and their specific organizations -- suffer from the continuation of this unwarranted and unseemly privilege that offered to just a few, at the expense of the many. Sincerely, Mike Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/>

2 1

FW: [bc-gnso] FW: [council] Confirmation of new practice at face to face open council meetings
by Mike Rodenbaugh Oct. 25, 2009

Oct. 25, 2009

Liz, I generally agree with you. I think this is a good idea to pursue with the OSC team and new Council that will devise Rules in this area. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: Liz Williams [mailto:lizawilliams@mac.com] Sent: Saturday, October 24, 2009 9:02 PM To: mike(a)rodenbaugh.com Cc: BC gnso Subject: Re: [bc-gnso] FW: [council] Confirmation of new practice at face to face open council meetings Mike It's helpful to be flexible in these situations and I think that the "system" needs to incorporate Issue Managers on a predictable and normal basis. People who work in Working Groups and Taskforces become natural experts and need a formalised platform to share their work. That is a good development which does not preclude Councillors doing their job on Council. It helps them in working group situations. This isn't the UN or APEC TEL or the OECD -- that's where we would worry about scalability. It is small numbers of people working a wide range of complex issues. Limiting the "table" to Councillors and Issues Managers is a mid way point between having the open slather which is currently the case and Councillors only. I'd suggest that the BC is in a position to be the leader here and that we should talk about the best way forward for working sessions tonight. Best wishes. Liz On 25 Oct 2009, at 03:48, Mike Rodenbaugh wrote: Hi Liz, I appreciate the thinking here, but still believe it is not scalable. It is clearly appropriate for any Councilor to allow anyone else to speak on their or their Constituency's behalf during a Council meeting for a limited time or purpose. Councilors can also raise comments or questions posed by others, of course. Just like I can forward an email from any constituent to the Council email list. Input from members is ALWAYS welcome, it just ought not be input directly to Council for many hopefully obvious reasons. All, I will not be responding further to the recent email from Mike Palage or Ron Andruff on this topic, as sufficient response is contained in my prior email to this List, today and previously. Namely, Michael Palage's 'conflict of interest' allegation was earlier raised by George Kirikos, and I consider it frivolous for the reasons stated during that interchange, particularly that any purported conflict was fully disclosed long before my last election, and has no impact on my efforts on behalf of the BC. The email from Ron also overlooks the fact that I have been elected to represent the BC on Council. While I appreciate the desire to always speak one's mind openly at Council meetings, the Council appears nearly unanimous that this privilege is not scalable, not fair, has caused detriment to the efficiency and output of the Council, and therefore has been discontinued. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: Liz Williams [mailto:lizawilliams@mac.com] Sent: Saturday, October 24, 2009 8:03 PM To: icann(a)rodenbaugh.com Cc: bc-gnso(a)icann.org Subject: Re: [bc-gnso] FW: [council] Confirmation of new practice at face to face open council meetings Hello Mike I'm sympathetic to the issues you've raised particularly as the weekend sessions are really working drafting sessions. I've had some experience of this in other environments and would like to suggest a middle ground which may help over-worked Councillors. We have proposed an Issue Manager/Rapporteur system in the new Charter and I suggest that anyone who volunteers to do work on issues (whatever they are) ought to be at the table as well. This helps new members/volunteers become experienced at dealing with a wide range of issues in great detail. It is also a supportive position for the Councillors. It spreads the work around and also maximises the use of different skills in the group (for example, some are better on technical issues than legal drafting or intellectual property or competition). For example, it would probably work something like (and I'll use me as a hypothetical) this. 1. Councillors are at the table supported by me (the Issue Manager) on ABC issue. 2. Issue Manager is responsible for the scribing/writing/presentation of materials. 3. Councillors are there to link different issues and positions together and take that to Council. This strengthens our work with diverse voices and volunteers taking responsibility who are "rewarded" with a seat the table. Best wishes. Liz On 25 Oct 2009, at 01:18, Mike Rodenbaugh wrote: Fyi below from the Council Chair, in response to the attached email string begun by me, and subsequent discussion of Council this morning. I have had these very strong feelings for a long time now, and various less formal efforts to remedy the situation have not been effective. The Council appears nearly unanimous in support of the concept that Councilors should be given every opportunity to speak at Council meetings, and any public comment periods within the weekend meetings will be structured more as they are in the large public Council meetings held on Wednesday of the ICANN meetings. This is an effort to make Council more efficient, and to allow Councilors to do their jobs without constant interruptions from non-representative individuals. Of course, there are many other opportunities for such individuals to voice their comments and questions through the GNSO's bottom-up, open and transparent policy development practices, including the BC's internal practices. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087 http://rodenbaugh.com -----Original Message----- From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Avri Doria Sent: Saturday, October 24, 2009 5:37 PM To: Council GNSO Subject: [council] Confirmation of new practice at face to face open council meetings Hi. After this mornings meeting I wanted to confirm several actions that I took away from the meeting: 1. the seats at the table for open council meetings will be reserved for council members, liaisons and relevant staff. Chair, vice-chair (s) and staff will request that others take the observers seats. For future meetings name placards will be requested to those to be seated at the table. 2. the observers will be requested to queue at the microphones, and the chair will be responsible for giving them the floor at appropriate points, though precedence for speaking will be given to those around the table. 3. any further changes to the practices at open meetings will be discussed by the new council at its discretion. Please let me know if I have misinterpreted the will of that meeting. a. From: "Gomes, Chuck" <cgomes(a)verisign.com> Date: 24 October 2009 23:50:08 BST To: <icann(a)rodenbaugh.com>, "GNSO Council" <council(a)gnso.icann.org> Subject: RE: [council] End of the Shadow Council Thanks Mike. Maybe we will have time to discuss this in our breakfast meeting. Chuck _____ From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh Sent: Saturday, October 24, 2009 5:42 PM To: GNSO Council Subject: RE: [council] End of the Shadow Council Hi Chuck, This is not a policy development issue, but instead is administrative. I have twice been elected to represent the BC in Council administrative matters. Specifically per our Charter section 4.1, "[t]he representatives will act in the GNSO Council as representatives of and spokespersons for the Constituency and will collaborate with other members of the Council in pursuit of the mission of the Constituency." I am only trying to discontinue an unwarranted privilege by which unrepresentative persons increasingly usurp the role of representative Councilors and Liaisons, and which unduly takes time from the entire Council and Staff. Do you have any reasoned argument against this? Thanks, Mike Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> (415) 738-8087 <http://rodenbaugh.com/> http://rodenbaugh.com From: Gomes, Chuck [mailto:cgomes@verisign.com] Sent: Saturday, October 24, 2009 2:15 PM To: icann(a)rodenbaugh.com; GNSO Council Subject: RE: [council] End of the Shadow Council Mike, Is this a CBUC request? Chuck _____ From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh Sent: Saturday, October 24, 2009 4:42 PM To: GNSO Council Subject: [council] End of the Shadow Council Dear Colleagues, I write again regarding the so-called "Observers" at face-to-face GNSO Council meetings. Of course, I fully support that our face-to-face meetings are generally always open to true observers, both those present and located remotely. And I fully support that all of our meetings are generally fully recorded and transcribed. Indeed I think they should be translated, and that our conference calls be opened in real time to the public, with non-speaking access. I fully support that our email list is open and archived. All of this allows the public to see how the Council operates in practically real-time, and to experience the information and debate first-hand. Council must have flexibility to close its sessions and/or communicate privately, when it deems necessary for any stated and agreed reason. But I believe that has never happened to date, and of course the default must be open meetings and open communications. However, the growing trend is for GNSO "Observers" to participate in the Council's weekend face-to-face meetings on equal footing with Councilors, Liasons and Staff. A small and growing group of privileged observers, none of whom are elected or appointed to represent anyone but themselves and/or their specific organizations, are increasingly taking an inordinate amount of Council and Staff time. In effect, they are a "Shadow Council" that follows the Council from meeting to meeting, taking advantage of a privilege they ought not have. This must stop, effective immediately. It is not scalable as the community of interested observers grows and diversifies. It is not fair in any way: n Not fair to Councilors and Liasons who offer great personal sacrifice to travel long distances away from their lives, volunteering an overly full weekend in advance of a lengthy five-day meeting. n Not fair to the constituents who elected or appointed the Councilors and Liasons, expecting that they (and only they) would serve as those constituents' representatives on Council. n Not fair to the general public whose only opportunities for input to Council are via the Constituencies, Working Groups or public comment periods. Particularly not fair to the general public that does not speak English, or who cannot attend the sessions, as they have no equal ability to participate vis a vis the "Shadow Council". n Not fair to the Staff nor the Council as a whole, whose only opportunity to communicate face-to-face is during these meetings. The GNSO Council is a representative body. The representative Councilors and designated Liaisons must be allowed to do their jobs, which absolutely requires face-to-face interaction with Staff and with each other -- without constant 'clarifying questions', 'points of order', comments or questions from the public. To my knowledge, no other SO, nor the GAC nor the Board - nor any other council, committee or board anywhere in the world -- ever allow such privilege to observers. Such points should be raised through Council representatives, or during any or all of the many opportunities for public comment into the Council processes. Indeed this is the reason-for-being of the Constituencies themselves, of Working Groups, of public comment periods in general, and of the public comment periods allowed at the Council's face-to-face meetings (which can also be used in our weekend sessions, if time allows). Therefore, beginning with the newTLD session today, I request that observers be disallowed equal access to the Council table and microphones, just as they are disallowed such access at our larger public meetings and in our conference calls. The material presented by Staff in the session today will doubtless be repeated during a public session later in the week, which is a perfect opportunity for anyone to ask their questions or make their points directly to the Staff, without wasting tremendously valuable and scarce face-to-face Council/Staff time. As we have seen, too many people are abusing the privilege of open access to raise points that they then raise again and again at every opportunity throughout the ICANN meeting, and/or to communicate their particular, non-representative interests. They are abusing a privilege that they should not have in the first place, because it is not fair. Does anyone have an argument as to why the current privilege should be allowed to continue? Is anyone aware of any other council, board or committee, anywhere in the world, that allows such a privilege to observers? Otherwise, I hope the privilege will be discontinued immediately, and request Avri to confirm via reply to this list. If not, my next effort to stop this will be an Ombudsman complaint, on behalf of the entire community, so that this practice is investigated by a neutral party and discussed formally at the Council and/or Board level(s). I also request that the relevant OSC team discuss this and recommend appropriate provisions in our Council Rules of Procedure to ensure that nobody is given undue and disruptive access to Council, Liaisons and Staff during our meetings. Each and every member of the community - other than the "Shadow Councilors" and their specific organizations -- suffer from the continuation of this unwarranted and unseemly privilege that offered to just a few, at the expense of the many. Sincerely, Mike Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/>

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Re: [bc-gnso] FW: [council] Confirmation of new practice at face to face open council meetings
by Liz Williams Oct. 25, 2009

Oct. 25, 2009

Mike It's helpful to be flexible in these situations and I think that the "system" needs to incorporate Issue Managers on a predictable and normal basis. People who work in Working Groups and Taskforces become natural experts and need a formalised platform to share their work. That is a good development which does not preclude Councillors doing their job on Council. It helps them in working group situations. This isn't the UN or APEC TEL or the OECD -- that's where we would worry about scalability. It is small numbers of people working a wide range of complex issues. Limiting the "table" to Councillors and Issues Managers is a mid way point between having the open slather which is currently the case and Councillors only. I'd suggest that the BC is in a position to be the leader here and that we should talk about the best way forward for working sessions tonight. Best wishes. Liz On 25 Oct 2009, at 03:48, Mike Rodenbaugh wrote: > Hi Liz, > > I appreciate the thinking here, but still believe it is not > scalable. It is clearly appropriate for any Councilor to allow > anyone else to speak on their or their Constituency’s behalf during > a Council meeting for a limited time or purpose. Councilors can > also raise comments or questions posed by others, of course. Just > like I can forward an email from any constituent to the Council > email list. Input from members is ALWAYS welcome, it just ought not > be input directly to Council for many hopefully obvious reasons. > > All, > > I will not be responding further to the recent email from Mike > Palage or Ron Andruff on this topic, as sufficient response is > contained in my prior email to this List, today and previously. > Namely, Michael Palage’s ‘conflict of interest’ allegation was > earlier raised by George Kirikos, and I consider it frivolous for > the reasons stated during that interchange, particularly that any > purported conflict was fully disclosed long before my last > election, and has no impact on my efforts on behalf of the BC. The > email from Ron also overlooks the fact that I have been elected to > represent the BC on Council. While I appreciate the desire to > always speak one’s mind openly at Council meetings, the Council > appears nearly unanimous that this privilege is not scalable, not > fair, has caused detriment to the efficiency and output of the > Council, and therefore has been discontinued. > > Mike Rodenbaugh > RODENBAUGH LAW > 548 Market Street > San Francisco, CA 94104 > (415) 738-8087 > http://rodenbaugh.com > > > > > From: Liz Williams [mailto:lizawilliams@mac.com] > Sent: Saturday, October 24, 2009 8:03 PM > To: icann(a)rodenbaugh.com > Cc: bc-gnso(a)icann.org > Subject: Re: [bc-gnso] FW: [council] Confirmation of new practice at > face to face open council meetings > > Hello Mike > > I'm sympathetic to the issues you've raised particularly as the > weekend sessions are really working drafting sessions. > > I've had some experience of this in other environments and would > like to suggest a middle ground which may help over-worked > Councillors. > > We have proposed an Issue Manager/Rapporteur system in the new > Charter and I suggest that anyone who volunteers to do work on > issues (whatever they are) ought to be at the table as well. This > helps new members/volunteers become experienced at dealing with a > wide range of issues in great detail. It is also a supportive > position for the Councillors. It spreads the work around and also > maximises the use of different skills in the group (for example, > some are better on technical issues than legal drafting or > intellectual property or competition). > > For example, it would probably work something like (and I'll use me > as a hypothetical) this. > > 1. Councillors are at the table supported by me (the Issue Manager) > on ABC issue. > > 2. Issue Manager is responsible for the scribing/writing/ > presentation of materials. > > 3. Councillors are there to link different issues and positions > together and take that to Council. > > This strengthens our work with diverse voices and volunteers taking > responsibility who are "rewarded" with a seat the table. > > Best wishes. > > Liz > On 25 Oct 2009, at 01:18, Mike Rodenbaugh wrote: > > > Fyi below from the Council Chair, in response to the attached email > string > begun by me, and subsequent discussion of Council this morning. I > have had > these very strong feelings for a long time now, and various less > formal > efforts to remedy the situation have not been effective. > > The Council appears nearly unanimous in support of the concept that > Councilors should be given every opportunity to speak at Council > meetings, > and any public comment periods within the weekend meetings will be > structured more as they are in the large public Council meetings > held on > Wednesday of the ICANN meetings. This is an effort to make Council > more > efficient, and to allow Councilors to do their jobs without constant > interruptions from non-representative individuals. Of course, there > are > many other opportunities for such individuals to voice their > comments and > questions through the GNSO's bottom-up, open and transparent policy > development practices, including the BC's internal practices. > > Mike Rodenbaugh > RODENBAUGH LAW > 548 Market Street > San Francisco, CA 94104 > (415) 738-8087 > http://rodenbaugh.com > > > -----Original Message----- > From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org > ] On > Behalf Of Avri Doria > Sent: Saturday, October 24, 2009 5:37 PM > To: Council GNSO > Subject: [council] Confirmation of new practice at face to face open > council > meetings > > > Hi. > > After this mornings meeting I wanted to confirm several actions that > I took > away from the meeting: > > 1. the seats at the table for open council meetings will be reserved > for > council members, liaisons and relevant staff. Chair, vice-chair > (s) and staff will request that others take the observers seats. > For future > meetings name placards will be requested to those to be seated at > the table. > > 2. the observers will be requested to queue at the microphones, and > the > chair will be responsible for giving them the floor at appropriate > points, > though precedence for speaking will be given to those around the > table. > > 3. any further changes to the practices at open meetings will be > discussed > by the new council at its discretion. > > Please let me know if I have misinterpreted the will of that meeting. > > a. > > From: "Gomes, Chuck" <cgomes(a)verisign.com> > Date: 24 October 2009 23:50:08 BST > To: <icann(a)rodenbaugh.com>, "GNSO Council" <council(a)gnso.icann.org> > Subject: RE: [council] End of the Shadow Council > > > Thanks Mike. Maybe we will have time to discuss this in our > breakfast meeting. > > Chuck > > From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org > ] On Behalf Of Mike Rodenbaugh > Sent: Saturday, October 24, 2009 5:42 PM > To: GNSO Council > Subject: RE: [council] End of the Shadow Council > > Hi Chuck, > This is not a policy development issue, but instead is > administrative. I have twice been elected to represent the BC in > Council administrative matters. Specifically per our Charter > section 4.1, “[t]he representatives will act in the GNSO Council as > representatives of and spokespersons for the Constituency and will > collaborate with other members of the Council in pursuit of the > mission of the Constituency.” > > I am only trying to discontinue an unwarranted privilege by which > unrepresentative persons increasingly usurp the role of > representative Councilors and Liaisons, and which unduly takes time > from the entire Council and Staff. > > Do you have any reasoned argument against this? > > Thanks, > Mike > > Mike Rodenbaugh > RODENBAUGH LAW > 548 Market Street > San Francisco, CA 94104 > (415) 738-8087 > http://rodenbaugh.com > > > > > From: Gomes, Chuck [mailto:cgomes@verisign.com] > Sent: Saturday, October 24, 2009 2:15 PM > To: icann(a)rodenbaugh.com; GNSO Council > Subject: RE: [council] End of the Shadow Council > > Mike, > > Is this a CBUC request? > > Chuck > > From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org > ] On Behalf Of Mike Rodenbaugh > Sent: Saturday, October 24, 2009 4:42 PM > To: GNSO Council > Subject: [council] End of the Shadow Council > > Dear Colleagues, > > I write again regarding the so-called “Observers” at face-to-face > GNSO Council meetings. > > Of course, I fully support that our face-to-face meetings are > generally always open to true observers, both those present and > located remotely. And I fully support that all of our meetings are > generally fully recorded and transcribed. Indeed I think they > should be translated, and that our conference calls be opened in > real time to the public, with non-speaking access. I fully support > that our email list is open and archived. All of this allows the > public to see how the Council operates in practically real-time, and > to experience the information and debate first-hand. Council must > have flexibility to close its sessions and/or communicate privately, > when it deems necessary for any stated and agreed reason. But I > believe that has never happened to date, and of course the default > must be open meetings and open communications. > > However, the growing trend is for GNSO “Observers” to participate in > the Council’s weekend face-to-face meetings on equal footing with > Councilors, Liasons and Staff. A small and growing group of > privileged observers, none of whom are elected or appointed to > represent anyone but themselves and/or their specific organizations, > are increasingly taking an inordinate amount of Council and Staff > time. In effect, they are a “Shadow Council” that follows the > Council from meeting to meeting, taking advantage of a privilege > they ought not have. This must stop, effective immediately. > > It is not scalable as the community of interested observers grows > and diversifies. It is not fair in any way: > > n Not fair to Councilors and Liasons who offer great personal > sacrifice to travel long distances away from their lives, > volunteering an overly full weekend in advance of a lengthy five-day > meeting. > > n Not fair to the constituents who elected or appointed the > Councilors and Liasons, expecting that they (and only they) would > serve as those constituents’ representatives on Council. > > n Not fair to the general public whose only opportunities for input > to Council are via the Constituencies, Working Groups or public > comment periods. Particularly not fair to the general public that > does not speak English, or who cannot attend the sessions, as they > have no equal ability to participate vis a vis the “Shadow Council”. > > n Not fair to the Staff nor the Council as a whole, whose only > opportunity to communicate face-to-face is during these meetings. > > The GNSO Council is a representative body. The representative > Councilors and designated Liaisons must be allowed to do their jobs, > which absolutely requires face-to-face interaction with Staff and > with each other -- without constant ‘clarifying questions’, ‘points > of order’, comments or questions from the public. To my > knowledge, no other SO, nor the GAC nor the Board – nor any other > council, committee or board anywhere in the world -- ever allow such > privilege to observers. Such points should be raised through > Council representatives, or during any or all of the many > opportunities for public comment into the Council processes. Indeed > this is the reason-for-being of the Constituencies themselves, of > Working Groups, of public comment periods in general, and of the > public comment periods allowed at the Council’s face-to-face > meetings (which can also be used in our weekend sessions, if time > allows). > > Therefore, beginning with the newTLD session today, I request that > observers be disallowed equal access to the Council table and > microphones, just as they are disallowed such access at our larger > public meetings and in our conference calls. The material presented > by Staff in the session today will doubtless be repeated during a > public session later in the week, which is a perfect opportunity for > anyone to ask their questions or make their points directly to the > Staff, without wasting tremendously valuable and scarce face-to-face > Council/Staff time. As we have seen, too many people are abusing > the privilege of open access to raise points that they then raise > again and again at every opportunity throughout the ICANN meeting, > and/or to communicate their particular, non-representative > interests. They are abusing a privilege that they should not have > in the first place, because it is not fair. > > Does anyone have an argument as to why the current privilege should > be allowed to continue? Is anyone aware of any other council, board > or committee, anywhere in the world, that allows such a privilege to > observers? > > Otherwise, I hope the privilege will be discontinued immediately, > and request Avri to confirm via reply to this list. If not, my next > effort to stop this will be an Ombudsman complaint, on behalf of the > entire community, so that this practice is investigated by a neutral > party and discussed formally at the Council and/or Board level(s). > I also request that the relevant OSC team discuss this and recommend > appropriate provisions in our Council Rules of Procedure to ensure > that nobody is given undue and disruptive access to Council, > Liaisons and Staff during our meetings. > > Each and every member of the community – other than the “Shadow > Councilors” and their specific organizations -- suffer from the > continuation of this unwarranted and unseemly privilege that offered > to just a few, at the expense of the many. > > Sincerely, > Mike > > Mike Rodenbaugh > RODENBAUGH LAW > 548 Market Street > San Francisco, CA 94104 > (415) 738-8087 > http://rodenbaugh.com > > > >

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FW: [council] Confirmation of new practice at face to face open council meetings
by Mike Rodenbaugh Oct. 24, 2009

Oct. 24, 2009

Fyi below from the Council Chair, in response to the attached email string begun by me, and subsequent discussion of Council this morning. I have had these very strong feelings for a long time now, and various less formal efforts to remedy the situation have not been effective. The Council appears nearly unanimous in support of the concept that Councilors should be given every opportunity to speak at Council meetings, and any public comment periods within the weekend meetings will be structured more as they are in the large public Council meetings held on Wednesday of the ICANN meetings. This is an effort to make Council more efficient, and to allow Councilors to do their jobs without constant interruptions from non-representative individuals. Of course, there are many other opportunities for such individuals to voice their comments and questions through the GNSO's bottom-up, open and transparent policy development practices, including the BC's internal practices. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087 http://rodenbaugh.com -----Original Message----- From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Avri Doria Sent: Saturday, October 24, 2009 5:37 PM To: Council GNSO Subject: [council] Confirmation of new practice at face to face open council meetings Hi. After this mornings meeting I wanted to confirm several actions that I took away from the meeting: 1. the seats at the table for open council meetings will be reserved for council members, liaisons and relevant staff. Chair, vice-chair (s) and staff will request that others take the observers seats. For future meetings name placards will be requested to those to be seated at the table. 2. the observers will be requested to queue at the microphones, and the chair will be responsible for giving them the floor at appropriate points, though precedence for speaking will be given to those around the table. 3. any further changes to the practices at open meetings will be discussed by the new council at its discretion. Please let me know if I have misinterpreted the will of that meeting. a.

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FW: [council] Motion for the Reponse to ICANN Board letter to GNSO Council
by Mike Rodenbaugh Oct. 24, 2009

Oct. 24, 2009

Fyi, for our discussion in the CSG and BC meetings on Tuesday. Any questions or discussion on list in advance may be helpful. Note the deadline for constituency statements of November 4th! Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) <http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer =http://rodenbaugh.com/contact> 738-8087 http://rodenbaugh.com <http://rodenbaugh.com/> From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Adrian Kinderis Sent: Saturday, October 24, 2009 5:41 PM To: GNSO Council Cc: Glen de Saint Géry Subject: [council] Motion for the Reponse to ICANN Board letter to GNSO Council All, During yesterdays discussions it was determined that a Review Team should be developed to review the issues and positions of members within the GNSO with regard to the ICANN Board letter to the GNSO in order to formulate the appropriate response to that letter. Please see the suggested motion below. We would propose to vote on this motion on Wednesdays GNSO Council meeting. Whilst we understand that this does not allow for the usual seven days we would ask that, on this occasion, because of the tight timelines, that all Stakeholder Groups act quickly to discuss this motion (potentially utilising time during Stakeholder Group day on Tuesday). Glen could you please forward this to each Stakeholder Group chair in order to promote this motion as efficiently as possible? Thanks! Thanks. Adrian ---------------------------------------------------------------------- WHEREAS, the ICANN Board has requested that the GNSO evaluate certain ICANN staff implementation proposals for the protection of trademarks in new gTLDs based in part on the recommendations from the IRT, public comments, and additional analysis undertaken by ICANN Staff, as described in the letter dated 12 October 2009 <<Letter <http://gnso.icann.org/correspondence/beckstrom-to-gnso-council-12oct09-en.p df> from Rod Beckstrom & Peter Dengate Thrush to GNSO Council>>. WHEREAS, the ICANN Board letter requests the GNSOs view by December 14, 2009 on whether certain rights protection mechanisms for second level strings recommended by ICANN Staff based on public input are consistent with the GNSOs proposed policy on the introduction of new gTLDs, and are the appropriate and effective options for achieving the GNSOs stated principles and objectives; WHEREAS, the GNSO has reviewed the ICANN Board letter and desires to approve the procedures for conducting such evaluation; NOW THEREFORE BE IT RESOLVED that the GNSO adopts the following process to conduct the evaluation requested by the Board: 1. A GNSO Review Team will be comprised of representatives designated as follows: the Registrar and Registry Stakeholder Groups with two (2) representatives each, the Commercial Stakeholder Groups and the Non-Commercial Stakeholder Groups with four (4) representatives each, and At-Large with two (2) representatives and one representative from the Nominating Committee Appointees(1); 2. Each of the Stakeholder Groups will solicit from their members their initial position statements on the questions and issues raised by the ICANN Board letter and the ICANN Staff proposed models for the implementation of the Trademark Clearinghouse and Uniform Rapid Suspension model, and will deliver their initial position statements on November 4, and with final position statements to be delivered by November 6, 2009; 3. Such position statements will be summarized by ICANN Staff and distributed to the GNSO Review Team to evaluate whether a consensus can be reached on the ICANN Staff implementation models or other proposals for the protection of trademarks in the New gTLD Program; and The GNSO Review Team will conduct its analysis, identify those areas where consensus has already been reached, an seek to develop consensus on those issues for which consensus could not be determined. The GNSO Review Team will provide a final report to the GNSO on or before the GNSO councils meeting in late November, 2009.

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Re: [bc-gnso] Can we have a huddle at 17:00 today for the BC Members who are here?
by Phil Corwin Oct. 24, 2009

Oct. 24, 2009

So where are we huddling at 5? Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell "Luck is the residue of design." -- Branch Rickey ________________________________ From: owner-bc-gnso(a)icann.org <owner-bc-gnso(a)icann.org> To: Ron Andruff <randruff(a)rnapartners.com>; bc-gnso <bc-gnso(a)icann.org>; 'BC List' <bclist(a)bizconst.org> Sent: Sat Oct 24 03:04:58 2009 Subject: Re: [bc-gnso] Can we have a huddle at 17:00 today for the BC Members who are here? I can make both - Thanks Ron Martin Sutton Manager, Group Fraud Risk and Intelligence Ph: ++44 (0)20 7991 8074 Mob: ++44 (0)777 4556680 Sent from my BlackBerry ********************************* HSBC Holdings plc Registered Office: 8 Canada Square, London E14 5HQ, United Kingdom Registered in England number 617987 ********************************* ________________________________ From: "Ron Andruff" [randruff(a)rnapartners.com] Sent: 23/10/2009 23:39 AST To: <bc-gnso(a)icann.org>; "'BC List'" <bclist(a)bizconst.org> Subject: [bc-gnso] Can we have a huddle at 17:00 today for the BC Members who are here? Dear colleagues, It seems that there are about 18 or so BC members attending the meeting, from Gary's email. That is excellent turn out and offers a lot of input from membership regarding making decisions and maintaining interaction among the BC membership while here at Seoul. Therefore, I would like to suggest we huddle tonight to talk about many of the things that have surfaced in today’s discussions. There are a lot of topics on the agenda for the BC that deserve membership discussion before the CSG meets on Tuesday a.m., at least informally. Clearly, these discussions should be held among all members, but in lieu of that possibility, a huddle with those present would give the BC Councilors some direction. It is tough to find time to 'huddle' as a constituency over the weekend, but I think that of the 17-18 members, most will be here by Sunday. There is a one hour time slot from 18:00 – 19:00 Sunday, after all the working groups, after the Joint GAC/GNSO meeting, and before the Councilors go off to their Board/Council dinner. I am recommending a huddle in the bar at 17:00 tonight; and another one tomorrow at 18:00. Can the BC members who are here please advise if they could attend? Kind regards, RA Ronald N. Andruff RNA Partners, Inc. 220 Fifth Avenue, 20th floor New York, New York 10001 www.rnapartners.com<http://www.rnapartners.com> V: +1 212 481 2820 x 11 F: +1 212 481 2859 ________________________________ SAVE PAPER - THINK BEFORE YOU PRINT! This E-mail is confidential. It may also be legally privileged. If you are not the addressee you may not copy, forward, disclose or use any part of it. If you have received this message in error, please delete it and all copies from your system and notify the sender immediately by return E-mail. Internet communications cannot be guaranteed to be timely secure, error or virus-free. The sender does not accept liability for any errors or omissions.

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Re: [bc-gnso] Can we have a huddle at 17:00 today for the BC Members who are here?
by Phil Corwin Oct. 24, 2009

Oct. 24, 2009

Excellent suggestion and happy to participate. Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell "Luck is the residue of design." -- Branch Rickey ________________________________ From: owner-bc-gnso(a)icann.org <owner-bc-gnso(a)icann.org> To: bc-gnso(a)icann.org <bc-gnso(a)icann.org>; 'BC List' <bclist(a)bizconst.org> Sent: Fri Oct 23 23:39:52 2009 Subject: [bc-gnso] Can we have a huddle at 17:00 today for the BC Members who are here? Dear colleagues, It seems that there are about 18 or so BC members attending the meeting, from Gary's email. That is excellent turn out and offers a lot of input from membership regarding making decisions and maintaining interaction among the BC membership while here at Seoul. Therefore, I would like to suggest we huddle tonight to talk about many of the things that have surfaced in today’s discussions. There are a lot of topics on the agenda for the BC that deserve membership discussion before the CSG meets on Tuesday a.m., at least informally. Clearly, these discussions should be held among all members, but in lieu of that possibility, a huddle with those present would give the BC Councilors some direction. It is tough to find time to 'huddle' as a constituency over the weekend, but I think that of the 17-18 members, most will be here by Sunday. There is a one hour time slot from 18:00 – 19:00 Sunday, after all the working groups, after the Joint GAC/GNSO meeting, and before the Councilors go off to their Board/Council dinner. I am recommending a huddle in the bar at 17:00 tonight; and another one tomorrow at 18:00. Can the BC members who are here please advise if they could attend? Kind regards, RA Ronald N. Andruff RNA Partners, Inc. 220 Fifth Avenue, 20th floor New York, New York 10001 www.rnapartners.com<http://www.rnapartners.com> V: +1 212 481 2820 x 11 F: +1 212 481 2859

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RE: [bc-gnso] Message from Mike Roberts
by Marilyn Cade Oct. 24, 2009

Oct. 24, 2009

Nice to hear from you, Mike! When you get into Seoul, if you are looking for where the majority of the BC members who are here are 'hanging' out, on Sunday a.m., you will find some in Emerald Room and some in Sapphire Room beginning at 9 a.m. At 11:30 a.m. probably EVERYONE from the BC, as well as others, will be in Emerald, since Kurt Pritz is doing an update on the new gTLD process. It will be great to have a chance to talk to you and also to Chris Martin regarding both topics while you are both here in Seoul. thanks for making that offer via the BC list. One point: I wanted to note that on Wednesday at 11 a.m., there is also an important meeting related to the Nom Committee [NomComm] Presentation of the WG Report -- I believe that BC members may be interested in that report, since it has significant implications for how to improve the NomComm process and the NomComm. Mike, I am not sure if you have that meeting on your agenda already. That meeting, just so all understand, is at the same time as the GNSO Policy Council meeting, and also competes with the DNSSEC Workshop. For the convenience of the BC members and Mike, I've pasted that meeting below. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Review of the Nominating Committee: presentation of the WG reportDate: Wednesday, 28 October 2009 - 11:00 - 12:30WebcastAudiocast: Audio Streaming providedRoom: Garnet (L37)What it is | This is the presentation to community of the draft report of the Nominating Committee review Working Group, containing recommendations to the Structural Improvements Committee and the Board.Why it's important | The Nominating Committee review WG follows up on the independent review finalized at the end of 2007 by external consultants. The first positions expressed in 2008 by the WG needed to be validated once terminated the process of review of other key structures of ICANN, which are strictly interlinked with the review of the NomCom. The NomCom review WG has recently updated the initial findings from the early phases of the review and presents now its draft recommendations, for public consultation.The outcome of this review is particularly important in consideration of the high significance of the role plaid by the Nominating Committee of ICANN in terms of selection of individuals that will be called to play a key role of governance of the organization.Who should attend? Past and present Chairs and Members of the Nominating Committee: this will be a crucial occasion to interact with the WG after the workshops recently organized in Mexico City and in Sydney that allowed the WG to progress on its workMembers of the community interested in the review of key structures of the organization, and on the interlinks between this review and other key reviews of ICANNMembers of the Board, who will have an occasion to hear the voices of the interested members of the community before taking a decision on the measures proposed by the report of the WGAgenda details: Thomas Roessler (Chair NomCom review WG) and Marco Lorenzoni (Director, Organizational reviews): presentation of the WG reportMembers of the Board review WG: Jonathan Cohen, Steve Goldstein, Alejandro Pisanty: agenda items to be confirmedComments from participants: open microphone From: secretariat(a)bizconst.org To: bc-gnso(a)icann.org Subject: [bc-gnso] Message from Mike Roberts Date: Sat, 24 Oct 2009 08:47:56 +0200 Posted on behalf of Mike Roberts Dear Colleagues - I am heading off to Seoul today as your elected representative to the 2010 NomCom. As noted in a previous message, I would appreciate hearing from you with regard to both your views on how to improve the NomCom process, as well as your suggestions for candidates to be recruited. I have not yet seen a message from staff with regard to the openings to be filled, but will pass that along when I do. I hope to talk to a number of you face to face in Seoul. Best regards, - Mike Roberts

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Can we have a huddle at 17:00 today for the BC Members who are here?
by Ron Andruff Oct. 24, 2009

Oct. 24, 2009

Dear colleagues, It seems that there are about 18 or so BC members attending the meeting, from Gary's email. That is excellent turn out and offers a lot of input from membership regarding making decisions and maintaining interaction among the BC membership while here at Seoul. Therefore, I would like to suggest we huddle tonight to talk about many of the things that have surfaced in today's discussions. There are a lot of topics on the agenda for the BC that deserve membership discussion before the CSG meets on Tuesday a.m., at least informally. Clearly, these discussions should be held among all members, but in lieu of that possibility, a huddle with those present would give the BC Councilors some direction. It is tough to find time to 'huddle' as a constituency over the weekend, but I think that of the 17-18 members, most will be here by Sunday. There is a one hour time slot from 18:00 - 19:00 Sunday, after all the working groups, after the Joint GAC/GNSO meeting, and before the Councilors go off to their Board/Council dinner. I am recommending a huddle in the bar at 17:00 tonight; and another one tomorrow at 18:00. Can the BC members who are here please advise if they could attend? Kind regards, RA Ronald N. Andruff RNA Partners, Inc. 220 Fifth Avenue, 20th floor New York, New York 10001 www.rnapartners.com V: +1 212 481 2820 x 11 F: +1 212 481 2859

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Re: [bc-gnso] Can we have a huddle at 17:00 today for the BC Members who are here?
by martinsutton＠hsbc.com Oct. 24, 2009

Oct. 24, 2009

I can make both - Thanks Ron Martin Sutton Manager, Group Fraud Risk and Intelligence Ph: ++44 (0)20 7991 8074 Mob: ++44 (0)777 4556680 Sent from my BlackBerry ********************************* HSBC Holdings plc Registered Office: 8 Canada Square, London E14 5HQ, United Kingdom Registered in England number 617987 ********************************* ----- Original Message ----- From: "Ron Andruff" [randruff(a)rnapartners.com] Sent: 23/10/2009 23:39 AST To: <bc-gnso(a)icann.org>; "'BC List'" <bclist(a)bizconst.org> Subject: [bc-gnso] Can we have a huddle at 17:00 today for the BC Members who are here? Dear colleagues, It seems that there are about 18 or so BC members attending the meeting, from Gary's email. That is excellent turn out and offers a lot of input from membership regarding making decisions and maintaining interaction among the BC membership while here at Seoul. Therefore, I would like to suggest we huddle tonight to talk about many of the things that have surfaced in today's discussions. There are a lot of topics on the agenda for the BC that deserve membership discussion before the CSG meets on Tuesday a.m., at least informally. Clearly, these discussions should be held among all members, but in lieu of that possibility, a huddle with those present would give the BC Councilors some direction. It is tough to find time to 'huddle' as a constituency over the weekend, but I think that of the 17-18 members, most will be here by Sunday. There is a one hour time slot from 18:00 - 19:00 Sunday, after all the working groups, after the Joint GAC/GNSO meeting, and before the Councilors go off to their Board/Council dinner. I am recommending a huddle in the bar at 17:00 tonight; and another one tomorrow at 18:00. Can the BC members who are here please advise if they could attend? Kind regards, RA Ronald N. Andruff RNA Partners, Inc. 220 Fifth Avenue, 20th floor New York, New York 10001 www.rnapartners.com V: +1 212 481 2820 x 11 F: +1 212 481 2859 ----------------------------------------- SAVE PAPER - THINK BEFORE YOU PRINT! This E-mail is confidential. It may also be legally privileged. If you are not the addressee you may not copy, forward, disclose or use any part of it. If you have received this message in error, please delete it and all copies from your system and notify the sender immediately by return E-mail. Internet communications cannot be guaranteed to be timely secure, error or virus-free. The sender does not accept liability for any errors or omissions.

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RE: [bc-gnso] Can we have a huddle at 17:00 today for the BC Members who are here?
by Steve DelBianco Oct. 24, 2009

Oct. 24, 2009

I can meet at 17 today. -----Original Message----- From: "Ron Andruff" <randruff(a)rnapartners.com> To: "bc-gnso(a)icann.org" <bc-gnso(a)icann.org>; "'BC List'" <bclist(a)bizconst.org> Sent: 10/23/2009 11:40 PM Subject: [bc-gnso] Can we have a huddle at 17:00 today for the BC Members who are here? Dear colleagues, It seems that there are about 18 or so BC members attending the meeting, from Gary's email. That is excellent turn out and offers a lot of input from membership regarding making decisions and maintaining interaction among the BC membership while here at Seoul. Therefore, I would like to suggest we huddle tonight to talk about many of the things that have surfaced in today's discussions. There are a lot of topics on the agenda for the BC that deserve membership discussion before the CSG meets on Tuesday a.m., at least informally. Clearly, these discussions should be held among all members, but in lieu of that possibility, a huddle with those present would give the BC Councilors some direction. It is tough to find time to 'huddle' as a constituency over the weekend, but I think that of the 17-18 members, most will be here by Sunday. There is a one hour time slot from 18:00 - 19:00 Sunday, after all the working groups, after the Joint GAC/GNSO meeting, and before the Councilors go off to their Board/Council dinner. I am recommending a huddle in the bar at 17:00 tonight; and another one tomorrow at 18:00. Can the BC members who are here please advise if they could attend? Kind regards, RA Ronald N. Andruff RNA Partners, Inc. 220 Fifth Avenue, 20th floor New York, New York 10001 www.rnapartners.com V: +1 212 481 2820 x 11 F: +1 212 481 2859

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Re: [bc-gnso] GNSO-related meetings, Seoul
by Phil Corwin Oct. 23, 2009

Oct. 23, 2009

By what process does the BC plan to select its 3 delegates to the GNSO drafting team on trademark protection? I would like to volunteer for one of those slots and believe I can contribute greatly to a final outcome that protects TM interests without abrogating the due process rights of registrants. Quite a number of domain investors belong to the BC so I would hope that the selection process results in a balanced delegation. Thanks Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell "Luck is the residue of design." -- Branch Rickey ________________________________ From: owner-bc-gnso(a)icann.org <owner-bc-gnso(a)icann.org> To: BC gnso <bc-gnso(a)icann.org> Sent: Wed Oct 21 04:18:28 2009 Subject: [bc-gnso] GNSO-related meetings, Seoul Dear Members Please find attached the GNSO-related meeting schedule in Seoul. Best wishes Gary

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