[ALAC] BGC decision of NCSG reconsideration request on TM+50

[Carlton Samuels]

Alan,
You're right, the policy/implementation d-mark does indeed move. And it is
depends on which environmental variable is ascendant. Sometimes it is a
personality and the force of that personality.  Other times is an issue and
the satellites with heightened interest around it.  Because the power
relationships in ICANN are both volatile and fungible.

To my mind, this TM+50 is just another instance that rubbishes the argument
'ICANN cannot be a regulator since it is not a state' and 'policy is policy
and implementation is implementation'.  So, here it is again, ICANN as
policy giving gifts as if it were a state. And indeed, with implementation
as in this case MORE generous than any state. [Interestingly in the
conversations leading up, Hong has pointed out the 50 variants of variants
really means a factorial expansion, an almost limitless extension of
trademark rights online as opposed to the brick and mortar world.]

But if ICANN is petitioned to act to protect a community from the impact of
its most deleterious statist actions, we are told 'that is regulation and
we don't do that'!  Go figure.

-Carlton


==============================
Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*
=============================


On Mon, May 20, 2013 at 11:40 PM, Alan Greenberg
<alan.greenberg at mcgill.ca>wrote:

>
> http://www.icann.org/en/groups/board/governance/reconsideration/recommendation-ncsg-16may13-en.pdf
>
> To cut to the result, the BCG rejected the request to overturn the
> inclusion of TM+50 into the TMCH.
>
> Part of the decision was based on the fact that the original TMCH
> implementation itself, a result of the STI effort, was deemed (by the
> GNSO and all of us) to be part of the IMPLEMENTATION of
> Recommendation 3 of the GNSO new gTLD PDP:
>
> >Strings must not infringe the existing legal rights of others that
> >are recognized or enforceable under generally accepted and
> >internationally recognized principles of law. Examples of these
> >legal rights that are internationally recognized include, but are
> >not limited to, rights defined in the Paris Convention for the
> >Protection of Industry Property (in particular trademark rights),
> >the Universal Declaration of Human Rights (UDHR) and the
> >International Covenant on Civil and Political Rights (ICCPR) (in
> >particular freedom of expression rights).
>
> As such, can a change or refinement to this "implementation" be
> anything other than still just implementation? This is to some extent
> supported by the minority position that the ALAC took on the STI
> report, specifically that the ALAC supported some level of TM +
> service/product being in the TMCH. We also supported common law
> trademarks in addition to registered trademarks. *IF* the STI had
> bowed to our wisdom on these issues, both of these would have been in
> the TMCH design.
>
> But the STI did not overall agree, and they did not end up in the design.
>
> Similarly, if the TM+50 had been raised during the STI and had won
> (not very likely in my opinion, just as our pet issues above did not
> win), then this too would have been part of the default implementation.
>
> Which of course now raises an interesting question.
>
> Why would these "features" have simply been part of the
> "implementation" of the TMCH is we had won the arguments in late
> 2009, but when we considered the TM+50 earlier this year, we
> forcefully felt that this was clearly policy?
>
> The answer is not obvious, and yet it seems to be at the core of the
> visceral reaction that many of us have on the question of policy vs
> implementation.
>
> I won't pretend that I have the answer to this. But I think that part
> of understanding it is to recognize that virtually all policy in the
> gTLD realm leads to implementation. Recent PDPs (and the new PDP
> process in the Bylaws) allow for an implementation team that helps
> ensure that the staff designed implementation follows both the word
> AND the intent of the policy. Indeed, one can consider that all of
> ICANN spent several years being the "implementation team" supporting
> the design of the New gTLD process and the AG.
>
> I am starting to suspect that as policy takes on a concrete form
> during implementation, in peoples minds, the arrived at
> implementation and the original policy became meld together and
> become inseparable. It is a bit of a scary conclusion, because it
> means that, in our minds, the line between policy and implementation
> for any given issue, MOVES over time.
>
> On a completely different issue, that of the new desired right of
> ICANN to change registry agreements without the concurrence of the
> registries (and outside of Consensus Policy) seems to validate my
> conclusion. One of the arguments that registries have made is that
> this option was already discussed several years ago and was discarded
> at that time, SO IT SHOULD NOT BE RAISED AGAIN. In effect, the
> elimination of that option several years ago enshrined NOT doing it
> in effective policy.
>
> I admit that much of what I have written here is really
> stream-of-consciousness (and it is a bit past midnight now!), and I
> have not fully thought it through, but I felt it important to capture
> it and I look forward to comments.
>
> Alan
>
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