I’d like to support Jon here. This seems like a sensible approach. Jonathan From: Jon Nevett [mailto:jon@donuts.email] Sent: Tuesday, June 19, 2018 4:11 PM To: Jeff Neuman <jeff.neuman@comlaude.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] FW: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 18 June 2018 at 15:00 UTC Jeff: There are a number of examples, like this one, where I am hearing about last minute proposed improvements to the report. We should have the time in Panama to go through theses changes vs. on the fly now. I propose that we consider and make any final clarifications/improvements in Panama. We should lock down the report after Panama and then send it out for public comment. Locking it down before Panama would only prevent us from making final clarifications and improvements necessitating comments on stale or incorrect language. Wouldn't we be better off getting comments on a better version? Thx. Jon On Jun 19, 2018, at 7:40 AM, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> > wrote: All, I think we can find a way to incorporate Kristina and Anne's comments because upon thinking about this, they are correct. Although the Guidebook uses the term "infringe" many times, technically, the Guidebook does not use an "infringement" standard in the supporting text. Perhaps generalizing the text to just ask if the standard that was applied was the correct one. So how about this: * Should the standard for the Legal Rights Objection remain the same as in the 2012 round? Please explain. And we drop a footnote quoting section 3.5.2 in full as Anne did below. Does that work? Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw -----Original Message----- From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > On Behalf Of Rubens Kuhl Sent: Monday, June 18, 2018 10:26 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > Cc: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] FW: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 18 June 2018 at 15:00 UTC Anne, The policy reads "Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law." (Source: https://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm) Anything different than that, including AGB which was supposed to be its implementation when it does not follow policy, is a change of GNSO policy. It also doesn't work picking 1 AGB reference when other 3 references in AGB say exactly what the GNSO policy says. We can't just pick references that go to one view and not the others from the same document. Rubens
On 18 Jun 2018, at 23:00, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > wrote:
Rubens,
This is definitely not a “change in policy” that Kristina and I are suggesting. The clear language of the AGB which codifies the grounds for the LRO is at 3.5.2 as follows:
3.5.2 Legal Rights Objection
In interpreting and giving meaning to GNSO Recommendation 3 (“Strings
must not infringe the existing legal rights of others that are
recognized or enforceable under generally accepted and internationally
recognized principles of law”), a DRSP panel of experts presiding over
a legal rights objection will determine whether the potential use of
the applied-for gTLD by the applicant takes unfair advantage of the
distinctive character or the reputation of the objector’s registered
or unregistered trademark or service mark (“mark”) or IGO name or
acronym (as identified in the treaty establishing the organization),
or unjustifiably impairs the distinctive character or the reputation
of the objector’s mark or IGO name or acronym, or otherwise creates an
impermissible likelihood of confusion between the applied-for gTLD and
the objector’s mark or IGO name or acronym.
Anne E. Aikman-Scalese
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com <mailto:AAikman@lrrc.com>
_____________________________
<image003.png>
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 2000
Tucson, Arizona 85701-1611
lrrc.com <http://lrrc.com>
From: Rubens Kuhl [mailto:rubensk@nic.br]
Sent: Monday, June 18, 2018 6:06 PM
To: Aikman-Scalese, Anne
Cc: Rosette, Kristina; gnso-newgtld-wg@icann.org
Subject: Re: [Gnso-newgtld-wg] FW: Proposed agenda - New gTLD
Subsequent Procedures PDP WG - 18 June 2018 at 15:00 UTC
Anne and Kristina,
While we can reckon the actual standard used in 2012, we can't simply
ignore that we have
- The current applicable GNSO Recommendation (3) saying infringement
- Three AGB references using infringement
3.2.1 Grounds for Objection
Legal Rights Objection – The applied-for gTLD string infringes the existing legal rights of the objector.
3.2.2.2 Legal Rights Objection A rightsholder has standing to file a legal rights objection. The source and documentation of the existing legal rights the objector is claiming (which may include either registered or unregistered trademarks) are infringed by the applied-for gTLD must be included in the filing.
Attachment to Module 3
Article 2 (e) (ii)
“Existing Legal Rights Objection” refers to the objection that the
string comprising the potential new gTLD infringes the existing legal
rights of others
(not counting 3.5.2, where infringement is redefined to the criteria
actually used)
That means that in order to keep 2012 status-quo, the policy recommendation needs to be changed and AGB also needs to be changed.
What I find curious is that ICANN's own Program Implementation Review failed to acknowledge this deviation from policy, and we probably need to state that somehow. Even if the PDP finds that it was for the better, and it looks that way to me, we shouldn't miss the learning that this mistake provided.
Rubens
On 18 Jun 2018, at 19:07, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > wrote:
I support Kristina’s comments shown in the attachment and note that she also states in her comment on page 10 that the LRO in 2012 was not an “infringement” standard. Kristina suggests in the attachment that we simply refer to the “standard used in 2012” if we are not willing to set out the three grounds set forth in the AGB and copied again below.
This same reference to “infringement analysis” occurs on page 15 of draft Section 1.8 so the language there should be conformed to the language chosen for page 10.
Again, the standard for LRO from 2012 is as follows:
As provided for in section 3.5.2 of the ICANN Applicant Guidebook, the independent panel will determine whether the potential use of the applied-for gTLD by the applicant:
(i) takes unfair advantage of the distinctive character or the reputation of the objector’s registered or unregistered trademark or service mark (“mark”) or IGO name or acronym, or
(ii) unjustifiably impairs the distinctive character or the reputation of the objector’s mark or IGO name or acronym, or
(iii) otherwise creates an impermissible likelihood of confusion between the applied-for gTLD and the objector’s mark or IGO name or acronym.
Anne
Anne E. Aikman-Scalese
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com <mailto:AAikman@lrrc.com>
_____________________________
<image003.png>
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 2000
Tucson, Arizona 85701-1611
lrrc.com <http://lrrc.com>
From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On
Behalf Of Rosette, Kristina via Gnso-newgtld-wg
Sent: Monday, June 18, 2018 7:52 AM
To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org>
Subject: [Gnso-newgtld-wg] FW: Proposed agenda - New gTLD Subsequent
Procedures PDP WG - 18 June 2018 at 15:00 UTC
This time with attachment. Apologies.
From: Rosette, Kristina
Sent: Monday, June 18, 2018 10:51 AM
To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org>
Cc: 'Steve Chan' <steve.chan@icann.org <mailto:steve.chan@icann.org> >
Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent
Procedures PDP WG - 18 June 2018 at 15:00 UTC
My comments and suggestions on 1.8 attached.
From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On
Behalf Of Steve Chan
Sent: Sunday, June 17, 2018 1:25 PM
To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org>
Subject: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent
Procedures PDP WG - 18 June 2018 at 15:00 UTC
Dear WG Members,
With apologies for the late delivery, please find the proposed agenda for the New gTLD Subsequent Procedures WG meeting scheduled for 18 June 2018 at 15:00 UTC, for 90 minutes.
• Agenda Review
• Roll Call/SOIs
• Review of the Initial Report (continued). * The purpose of this review is to ensure that preliminary outcomes and deliberations are accurately captured and written in an understandable manner. The WG Co-Chairs have sought to make clear that this exercise is not intended to re-open substantive discussions, which is better served by the submission of public comments and subsequently when reviewing public comments received. Please submit your comments about these sections to the Working Group mailing list (gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> ) in advance of the meeting.
• Review of Section 1.8 (Accountability Mechanisms)
• Review of Section 1.9 (Community Applications)
• Review of other sections in the Initial Report
• AOB
For Item 3, the relevant documents are attached. As a reminder, please note that a resource page has been set up on the Wiki to track the distribution of Initial Report sections, which you can find here: https://community.icann.org/x/NwUhB.
For Item 4, you will find a draft of most of the other sections within the Initial Report, including the Preamble and the Executive Summary. You will see a placeholder in Section 2, which states, “Insert sections from the excerpts reviewed by Working Group…” – here, staff will insert the sections we have been reviewing for the last couple of months, inclusive of any changes as needed from discussions on calls and on list.
Those signed up as Members to this PDP WG should have received meeting information from the SOAC Support team. If you did not receive these participation details or if you would like to send your apologies, please contact the SOAC Support team (gnso-secs@icann.org <mailto:gnso-secs@icann.org> ).
Best,
Steve
Steven Chan
Policy Director, GNSO Support
ICANN
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