[ALAC] Red Cross and IOC Protection under the new gTLD process

Alan Greenberg alan.greenberg at mcgill.ca
Sat Feb 25 05:20:45 UTC 2012

At 24/02/2012 10:38 PM, Evan Leibovitch wrote:
>On 24 February 2012 17:17, Alan Greenberg 
><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca> wrote:
>At 24/02/2012 04:56 PM, Evan Leibovitch wrote:
>On a personal basis, I had the choice of whether to join the DT and 
>work to make the end-result as palatable as I could, or to simply 
>ignore it (or boycott is as you phrase it). I chose the former, but 
>that was a personal decision and not one on behalf of ALAC or 
>At-Large. If I had been given a directive from ALAC not to 
>participate, that might have altered the situation. But there were 
>many months during which this could have happened, and it did not. I 
>look forward to seeing what collective action ALAC takes on this now.
>On the contrary, I applaud your initiative and participation.
>My suggestion of a "boycott" is to not endorse the results of this 
>action, but to do so properly requires informed action, and your 
>involvement has offered that information.
>It's also my understanding that one of the options offered to the 
>drafting team was to insist on no exceptions, but that was rejected 
>because the decision had already been made (opaquely and without 
>consulting stakeholders) to "do *something".

There is no doubt that we certainly could have said that the 
exception should be removed from the AG, but there was a perception 
(which I certainly shared)that this would be a futile gesture and our 
time was better spent trying to ensure that what we ended up with was 
reasonable and equitable. I, for one felt that it was important to 
try to set expectations for other applicants to understand what the 
process would be for their applications if there was a perceived 
overlap with the protected marks (ie the oft-quoted example Olympus 
Cameras). As stated in the AG that application might sail through, or 
might end up in a costly and time-consuming objection process. With 
the proposal, it is still far from clear, but if there is a problem, 
it is likely to show up much earlier in the process and in the worst 
case, will likely result in a full refund if the application is not allowed.

>- However, the GAC is one component of the MSM, albeit (to 
>paraphrase George Orwell), a part that is perhaps more equal than other parts.
>In order for the MSM to work there still needs to be consultation 
>(before decisions are made) with other stakeholders.
>If the GAC is to always get its way without the ability to challenge 
>what it wants, why bother with ICANN anyway?

Sadly, some of those same governments are already saying why bother 
with ICANN. I guess my only reply is to get the MSM working so that 
GAC input is truly factored in early.

>- To not factor in such GAC advice, even if delivered at the last 
>moment, is to pretend that the processes and decisions that preceded 
>it are infallible and by definition cannot be changed.
>"Factor in" is not the same thing as "the decision's already been 
>made by them, opposition is fultile"
>As you well know, I would be the last one here to claim that the 
>processes and decisions are infallable. But they have far more 
>evidence of deliberation and transparency than the current 
>overriding process cooked up by the Board and GAC, which is indeed 
>being presented to the GNSO (and even more indirectly, ALAC) as 
>something that "by definition cannot be changed".

In this case, and at  the top level, I think that opposition was 
futile. Perhaps we have learned a bit from the process so it will not 
be repeated, at least not in exactly the same way. It is quite 
unclear (in my mind) whether what is a reserved name is truly a GNSO 
policy issue or not. My understanding is that the list has changed a 
number of times and with no GNSO policy involvement. If that is 
correct (and I don't really know if it is), then it was a Board 
prerogative to make the change. Since we are doing the present work 
in a DT and it will then go to Counsel, and not via a PDP, 
that  tends to say the interpretation is correct.

In any case, no doubt the next problem area will have a different set 
of parameters and we will have to learn anew...

>I find the last conclusion to be a "stick your head in the sand" 
>position that ignores that the world changes and we must always be 
>in a position to reconsider past decisions when alerted to problems with them.
>Reconsider? Sure. There are plenty of things about ICANN -- and 
>specifically the gTLD program -- that I consider badly flawed and 
>would love to have reconsidered.
>And any process of reconsideration cannot be as opaque as the one 
>inflicted on the GNSO.
>But, as you say, some stakeholders are more equal than others, and 
>ALAC is the least equal of all. Just don't expect us to legitimize it.

Not a thing I would presume!  ;-)

>That being said, hopefully this round of last-minute GAC input has 
>been troubling to all parties, including (I think) the GAC, and 
>perhaps we are on a path to doing things in a more rational way in the future.
>"But, nonetheless, regardless of how troubling THIS is, let's ram it 
>through anyway.....?"
>Obviously they can't be THAT visibly troubled...
>But we can be.


And with that I will remind myself that this is just ICANN, shut down 
my computer and resume my real life.


>- Evan

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