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

[Hong Xue]

>  A good point to raise. But I don't believe the request for
> reconsideration listed THAT as an issue.
>

No, it is exactly the issue filed for reconsideration.

Grounds of Requests: The NCSG Asserted that the Action Resulted in
“Staff-Developed Policy.” The NCSG Asserted that the Action Follows “No
Known” Policy or Procedure. The NCSG Asserted that the Action Violates the
Bylaws Consultation Process and the AoC.

Findings of Recommendation P.9 "In our opinion, the fundamental question
behind this Request is whether staff’s action
was one of implementation of existing policy or the creation of new policy.
If the staff action is
one of creation of new policy, Reconsideration is well-taken here. If the
staff action is one of
implementation of existing policy, then ICANN’s processes were followed,
and there is no
further merit to the Request. As a result, the BGC will consider whether
the action is a creation
of new policy or implementation of existing policy."


>
>  On this issue, I suspect the overall battle is lost, but the issue of
> whether it should be 50 per trademark/beneficial owner combination, or 50
> per entry in the TMCH has not really been discussed and that is an issue
> that I think we may want to discuss further and one that we might have some
> traction with.
>
> Agree. I'd very happy to pursue this interesting issue further. Actually
all IP people would be overwhelmed by the potential problems of 50+.

Option a) 50+ records in TMCH are the domain name strings (for example
yahoosuchs.com or prada-for-sale.com) that had been either transferred or
deleted in UDRP proceeds. But, many well-known marks have already won more
than 50 UDRP decisions. It is arbitrary to limit to 50. How to limit to 50?


Option b) an owner of a mark that has been "abused" in a UDRP proceeding
(for example geogle.com) may choose to submit up to 50 "variations" of its
marks (for example Gooogle, Gooooooogle, etc). It is definitely arbitrary
if variations are subject to the mark holder's choice. Some years ago, CNN
claims that CNNIC is confusingly similar to it-:)

BUT, UDRP has no finality and its decision may be overruled by the
competent court. Shouldn't the final judicial decision count, rather than
the UDRP award that has been set aside?

AND, UDRP is also applied to a number of ccTLDs. Would 50+ be extended to
the UDRP cases regarding ccTLD domain names?

TMCH implementation is now completely messy and its two appointed providers
are not even ready to handle the "exact mark" (without IDN variants), let
alone this 50+. If 50+ is indeed implementation, there still need further
guidance or clarifications to enable it.

Hong



>
>
> At 22/05/2013 12:02 AM, Hong Xue wrote:
>
> Irrespective of whether 50+ is policy or implementation, I don't believe
> the BGC recommendation's interpretation that the "rules of implementation"
> are solely in the discretion of staff, not subject to the MS participation
> and supervision, be accurate.
>
> Hong
>
>
> On Wed, May 22, 2013 at 2:56 AM, Alan Greenberg <alan.greenberg at mcgill.ca> wrote:
>  At 21/05/2013 01:35 AM, Avri Doria wrote:
>
> >On 21 May 2013, at 06:40, Alan Greenberg wrote:
> >
> > > 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.
> >
> >at least not without another PDP to change the policy.
> >
> >avri
>
> So you are saying that something that was implementation several
> years ago when discussed during the various versions of the AG, is
> now policy, and moreover, it would require a PDP to change (not just
> a GNSO policy process but a formal PDP even though it is not a
> subject for Consensus Policy as per Bylaws Annex A - "If the GNSO is
> conducting activities that are not intended to result in a Consensus
> Policy, the Council may act through other processes.")
>
> Alan
>
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>
>
>
> --
> Professor Dr. Hong Xue
> Director of Institute for the Internet Policy & Law (IIPL)
> Beijing Normal University
> http://www.iipl.org.cn/
> 19 Xin Jie Kou Wai Street
> Beijing 100875 China
>
>


-- 
Professor Dr. Hong Xue
Director of Institute for the Internet Policy & Law (IIPL)
Beijing Normal University
http://www.iipl.org.cn/
19 Xin Jie Kou Wai Street
Beijing 100875 China