New subject: Actions/Discussion Notes: Work Track 3 Sub Team Meeting 20 December

Dec. 20, 2016

      Dear Sub Team Members,

Please see below the action items and discussion notes captured by staff from the meeting on 20 December.  These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the recording.  Please also see the recording on the meetings page at: https://community.icann.org/display/NGSPP/Work+Track+3+Meetings.

Best regards,

Julie

Julie Hedlund, Policy Director

Action Items/Discussion Notes 20 December

1. Update from the Full PDP Working Group (Avri Doria)

·         Focused on completing the first reading of the CC1.  Completed that process.

·         Next step is for the Chairs and staff to try to pull together a first draft of a document that makes recommendations based on responses to CC1

·         Poll on changing the rotation schedule to take the 3:00 UTC Monday out of rotation and replace with 3:00 UTC Tuesday.

2. Recap and Positioning on Limited Public Interest Objections

a. Content & function for purpose of policy stated in AGB 3.2.2.3 and 3.5.3

b. Needs with regard to future implementation

·         Last meeting interesting discussion on this topic and there seemed to be some consensus around not needing major changes.  Do we agree? [No objections offered.]

·         Think about a different interpretation on terminology. 
...
From the chat:
Gg Levine (NABP): "Universally" seems unrealistic as an alternative to "generally."

Karen Day: universal isn't realistic so is there anything better than generally?

Gg Levine (NABP): Sorry, I don't have a better suggestion than generally.

Karen Day: Gg - Me either so absent anyone coming up with one, looks to me like "generally" is what we'll need to stick with.

c. ALAC lack of standing

·         Discussion about the issue of ALAC being given funding to participate in the Limited Public Interest Objection process but not having standing.

·         Will be a discussion in the ALAC on this topic, whether to continue the process.  Will come back to this group as that discussion proceeds.

·         The ALAC was given funding but not given standing, like the independent objector.  To file a public interest objection you have to have some involvement in the issue.  Classic Catch-22.

·         So, the solution could be to give ALAC standing or to removing the funding.

·         Maybe the intent was to fund ALAC where they would otherwise have standing to object.

·         Don't think it was actively discussed.  ALAC decided to file objections similarly to filing advice to the Board (such as on confusingly similar).  One way or another it has to be clarified or withdrawn.  Not much more to say on this until we know whether or not the ALAC wants to continue with this option.

·         Did the ALAC file for the same things as the Independent Objector did?  If so that would be duplication.

·         The Independent Objector was to pick up objections from those who had no other way to object.  ALAC like the other ACs had the ability to object to things that were within their area of concern.  Might need to say something about how the IOs are selected and used, to tighten up the descriptions.
...
From the Chat:
Greg Shatan: Maybe the intent was to allow ALAC to object only where they had standing.

Annebeth Lange, ccNSO: Good points from Alan here. ALAC is representing the users, even if it is difficult to prove.

Paul McGrady 2: Apologies if this has already been asked, but were there times when ALAC filed an objection on a string that the I.O. didn't object to?

Cheryl Langdon-Orr (CLO): that was the rationale for being funded to object Yes Annabeth 

Kiran Malancharuvil: I'm okay with standing for alac if the objection process requires alac to justify why this is on behalf of users.

avri doria: lots of things may not have appeared clear to the panelists all along the way. By default however, it will stand as it is. 

Greg Shatan: Did ALAC analyze the standing issue before filing the objections?  Or was it just assumed that there would be standing?

Karen Day: @Greg - we're looking at doing deeper research in the objections themselves and if we get it lined up we will definately add this question as one to include.

d.  Does the process invite lobbying from 3rd parties?

·         Example: WHO lobbying ALAC.  Concerns that this could be a problem.

·         There was an allegation that ALAC was being gamed.  There is no question that the WHO is one of the groups that brought this to ALAC's attention.  They carried out due diligence.  Don't think it was gaming.

·         Clarification: Question about lobbying was in relation to the ALAC funding and standing issues.

·         One could be more clear if ALAC is funded again what their process would be.  Could say that it is appropriate that things are brought to their attention according to their user community.  Separate from whether there should be funding for ALAC and only ALAC. Needs a revisit overall.
...
From the chat:
Kiran Malancharuvil: how would you ever solve for that?

Paul McGrady 2: Isn't the WHO an end user?  Can't an end user ask the ALAC for help?  I guess I don't see the gaming.

Kiran Malancharuvil: agree

avri doria: i think the notion of gaming and esepcially accusations of gaming are pernitious and should be avoided as much as possible.

Cheryl Langdon-Orr (CLO): agree 

avri doria: judging the intentionality of others is really hard.

Annebeth Lange, ccNSO: @Avri - agree

Greg Shatan: WHO is an IGO and thus aligned more with the GAC, but I suppose we could also call them an end-user.

Alan Greenberg: Note that Jeff made it clear he was taking off his chair hat and speaking with relation to one of the applicants. (If I remember correctly).  We did not class WHO as an end user, but as a group that alerted us to an end-user issue.

Kurt Pritz: (1) I found 23 Limited Public Interest Objections - all seem bona fide except of course, we cannot tell with the Independent Objector or ALAC; (2) Everyone has standing to file a Limited Public Interest Objection, ALAC file one and withdrew it (although I do not know why) so why was ALAC denied standing?

Kiran Malancharuvil 2: I honestly don't understand how we can call anything gaming.  This is an open process.  Organizations have every right to engage in the process. I think there's a tendency at ICANN to devalue certain voices (corporations, organizations, etc.) and I think that's dangerous.  Multi-stakeholder is multi-stakeholder.

Annebeth Lange, ccNSO: For me, gaming is something very different from what we are talking about now. I must be allowed to make a stakeholdergroup aware of a problem.

Paul McGrady 2: @Annebeth - agree.  "Gaming" is something sinister.  End Users making ALAC aware of a concern is not.

Phil Buckingham: +1  Annabeth.

3. Legal Rights Objections – AGB 3.2.2.2 and 3.5.2 / Principal G – Recommendation 3; See Wiki:  https://community.icann.org/display/NGSPP/4.4.3+Objections

a. Review of Objections Statistics with links to results for LRO cases.

b. Review of WIPO Final Report on LRO

c.  Review of INTA Report – The ICANN LRO: Statistics and Takeaways: See:  https://community.icann.org/x/Vz2AAw

·         Instead of trying to guess based on the statistics that we had an overwhelming number of applicants prevail and therefore the cases must have been no good, which should step back and suggest changes to the policy to make it useful for the future. One reason why the complainents lost because the LRO isn't tailored to do its job.  Enfringement has to do with use, which is hard to prove.  Not a useful policy.  Need to do some significant reworking if we are going to protect consumers.

·         One of the issues that Paul McGrady has raised in his proposal and possible solution -- anyone else want to weigh in?

·         Seems that the LRO were nearly impossible to win from the mark owner, if the mark had more than one meaning the panelists decided it wasn't bad faith.  Need more points for an inference of bad faith.

·         A lot of this stems from the fact that the standards that were being applied were kind of a hash, and also whether there was precedential value on decisions and what is being judged.

·         Not a lot of sympathy for trademark names when we are talking about a dictionary term.  Don't want to take a dictionary word out of common use
...
From the chat:
·         Kurt Pritz: Are there any decisions where we thought the panel incorrectly found for the applicant?

·         Paul McGrady 2: Bad faith can only be inferred from the facts - unless a party admits to it - so we need more inference points.

·         avri doria: i think trying to decide that a decsion of a panel was right or wrong is tough since there are two sides, at least, to each of the cases.  we can mre look for places where different panels seemed to decide similar cases in a contradictory manner.

·         Kurt Pritz: Abuse or infringement is generally demonstrated through use and there is no "use" at the application stage. (As Paul said.) But we should take care not to make a process that is more easily winnable just to balance out the results. There should be real infringement before an application is defined.

·         Paul McGrady 2: I think abuse can be shown without use as can dilution; infringement is based on use though.

·         Kurt Pritz: Has the delegation of .coach or .express resulted in abuse? 

·         Paul McGrady 2: http://purses.coach/ leads to PPC ads, so yes.  @Robin, we should be careful with throwing around terms like "generic."

·         Kurt Pritz: Then the RPM can be used with that specific example for purse.coach but all legitimate uses of a .coach  name should not be barred.

·         Nathaniel Edwards: Yes, but because a trademark is a dictionary term does not mean that it is not an arbitrary or fanciful trademark entitled to broad protection. GOOGLE had a dictionary meaning before it was a trademark.

·         Greg Shatan: wallets.coach and handbags.coach do the same.  Feh.

·         Paul McGrady 2: Dictionary entry does not = generic.

·         Rubens Kuhl: Google did not. Googol did.

·         Greg Shatan: Looks like all of those (bags.coach, too) are owned by Coach. Apparently registered defensively.  Coincidence or business plan?

·         avri doria: Again, indicating intentions is risky.

Paul McGrady on Legal Rights Objection 3.2.2.2 [Reading through the attached document with proposed language.] 

Action: Look through the proposal and discussion on the list/at next meeting.

Actions/Discussion Notes: Work Track 3 Sub Team Meeting 20 December

Julie Hedlund

Jeff Neuman

Mike Rodenbaugh

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