Happy Belgian National Day all! I realise this may not mean much to anyone but me ;-) but imagine me waving my little flag & toasting you all in decent Belgian beer :-).

Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.

Happy Belgian National Day, Marie!

Merci Madame!

Have a great holiday, Marie

Merci David. I could sing the National Anthem to cover this silence... but I respect you all too much to inflict that on you ;-).

For those just joining, Phil is changing internet connection and re-joining shortly to continue the call

hand up

Did Phil get cut off?

yes

Yes - Phil we only caught the end of that

Loud & clear, Phil.

https://docs.google.com/spreadsheets/d/1QTt_m5qdzoalRDcIUED01ur-yJgODCex8bj_-aKO7fI/edit#gid=1283083392

Day of telecom problems

maybe the alignment of the planets

I’ll reach out to him

Jason, you'll have to come back in.

I don't see what new idea there is that's been raised. but no doubt that will be clarified at some point

yes

Sure - happy to, Susan. It’s right at the top: INTA is open to exploring a limited system for reviewing TMCH records, perhaps through an accredited access system akin to the WHOIS SSAD being developed in another ICANN policy development process.

we've discussed that before

I don’t recall discussing that, and certainly not from the context of INTA’s having supported it.

Hand up

Phil, I think there is a merged proposal on the table.

Apologies for joining late. I got held up elsewhere.

Welcome Justine!

Claudio is the third person in the small team that proposed this consolidated proposal

Is Claudio on the call?

@kathy, he is not.

Tx Nathalie

If one were to adopt this, then 3.2.6 should have the addition "unless they also satisfy 3.2.1 or 3.2.2"

Susan, I'm sure that's acceptable to everyone

and 3.2.6 seems to have a comma for no reason

PDOs are an EU term.

+1 Paul, I think it's supposed to be appellations of origin. But then I'm not of the author of the proposal.

In terms of international treaty, GIs are defined in the TRIPS Agreement. Appellations of origin are defined in the Lisbon Treaty. As Marie said, the EU has “protected designations of origin”.

sorry for being late

hello all

I agree that there should be no use for 3.2.4. If you define things properly - there should be no need for a broad catch-all

There has been a fair bit of jurisprudence, both academically and to some extent in the WTO trade dispute area, about the origin and extent of intellectual property rights protection for GIs. This is one reason why staff respectfully suggests that the Working Group not try to distinguish between the various “other forms of IP” as that is a complex legal subject that may go beyond our scope.

@Paul - overview https://ec.europa.eu/info/food-farming-fisheries/food-safety-and-quality/certification/quality-labels/quality-schemes-explained_en

Not for now but for info.

We need to fix "designation of origins" or else it will be hard to get on board with 3.2.6 but I want to get on board with 3.2.6 because like many/most I do not thing GIs have a place in the TMCH unless they are also registered trademarks in a national or supranational trademark office.

Sorry, I have just joined the called….

Perfect timing Massimo!

:-)

But indications are NOT supposed to be in the TMCH

and 3.2.4 is not entitled to Sunrise/Notice. Part of this disagreement is about the label of the database into which 3.2.4 stuff goes, which I don't think is actually very important to anyone if Sunrise/Notice are respected

@Rebecca, understood. The staff suggestion for clarity acknowledges that this proposal describes an ancillary database that doesn’t trigger Sunrise or Claims for the group of “other forms of IP”.

Thanks, Mary--I wanted to address Greg's specific comment in chat, with which I am in substantive agreement

Too be clear, my position is that GIs should not be in the TMCH.

@Mary, what woud be the point of putting something in the TMCH if it qualified neither for sunrise nor claims?

Greg, do you then want to delete 3.2.4?

If we want a GICH that’s a whole other discussion....

+1 @Susan - what point, indeed.

I agree with Cyntia and Susan mostly but I do have a theory

which is that Deloitte would like someday to develop ancillary services it has yet to offer

@Susan, staff doesn’t have a position on the proposals. We just wanted to encourage the Working Group to not try to create different treatment regimes as between various “other forms of IP” which may include GIs (which this text for 3.2.4 and 3.2.6 may imply).

@Rebecca, yes.

+1 Phil. We have gone down the path over and over as to whether or not non-trademark-registered GIs should be in the TMCH. There is no strong support for it. Let's refine the proposal on the list but let's not relitigate the other issue which is long dead now.

Unfortunately Greg I doubt we can get there but if you agree that only 3.2.1, .2, and .3 get Claims and Sunrise, are we most of the way to agreement?

If there was a reason for it that was consistent with the original focus of the TMCH, it would be interesting to identify it,

It being 3.2.4

Massimo still has his hand up

In other words, we do not think it advisable to try to distinguish between GIs, PDOs, AOOs etc. More broadly, while staff doesn’t have a view about GIs vs TMs, our sense is that the Working Group generally agrees that the TMCH should be for TMs only (which may include GIs only to the extent that they are registered as either collective or certification marks).

I believe the theory was ancillary services, and it got stuffed into "TMCH" because people weren't thinking very much about the name by that point. But if the databases are distinct for Claims/Notice, how much do we care?

Good (to Phil's guidance).

+1 Kathy - good suggestion by Phil

@Rebecca, as a general proposition, agree on 3.2.1, 2, 3.

@Ariel, could you share the link, please?

Already asked and answered.

Overarching questions: https://docs.google.com/spreadsheets/d/1wke2krmhV2tNPNhvIOskAlLVraWp-88mqzScCtj01fw/edit#gid=872694278

tx!

Greg, I think part of the problem is that read with sedulous attention, 3.2.1 .2 .3 are already the only ones allowed to get Claims/Notice but the cross-references obscure this. How much do you care about whether the database into which .4 terms go is called the "TMCH" *if* it is clear that GIs are .4 ?

We can't keep going back to Day 1 on every call if we are ever going to get through these.

A GI is no more a trademark than a duck is a chicken.

I understand your point, Greg; from my perspective they're putting ducks in the chicken pot right now, and if you want to change that, you might have to accept that the rules will refer to the poultry shed as the chicken house so that the chickens and ducks will be separated.

We don’t protect ducks by calling them chickens or putting them in chicken coops.

Right, but if we don't get consensus, that's what continues to happen ...

It’s easy enough to keep out the ducks. What do you think we need to get there?

Again, staff do not proffer a view about whether the TMCH should include “other forms of IP” (including those, like GIs, that may enjoy sui generis protections). We simply think the Working Group should treat all “other forms of IP” equally (including as a group distinct from TMs, which some members support) and not try to define or distinguish between a GI, an AOO or PDO etc.

+1 Mary

hand up

Greg, I wish it were easy to keep out the ducks, and I could easily live with just deleting 3.2.4, but there are other voices strongly in support of it and there didn't appear to be a possible consensus on that fix. Would you be satisfied if 3.2.4 explicitly said that any database for 3.2.4 should be given a separate name? It is already not eligible for Claims/Notice.

hand up to respond to Kathy’s request

anyone else have hard time hearing Julie

yes

yes

There will remain the issue of fragmentation & non-harmonisation if these gTLD RPMs only apply to *some* gTLDs. Added to the contract negotiations in which URS etc. now apply to some legacy gTLDs. It's confusing for anyone not versed in the detail, I think.

@Julie, can't hear you very well

+1 - sorry.

@Julie - can this be put together into a single set of paragraphs?

But it needs to be a bit more concise...

sounds like an easy jump to the summary!

@Kathy: The summary has already been provided in the chart and in the text

+1 Kathy

Also, we should not summarize more or we’ll lose the context or mischaracterize the comments

The final report will no doubt have some text about the WG’s deliberations about these other overarching questions - but the staff believe that the current tool (that is on screen) already summarizes the positions and comments.

General language with links seems to be appropriate so folks can dive deeper if they wish

I think we are in agreement.

good

Staff can produce that summary as a draft answer to the charter question to be included in the final report for the WG to review

we are skipping #2

Did anyone see major new information in these responses?

(#3)

I don't see the need for "offsets". We have discussed synchronizing language & materials for several RPMs.

hand up

So we have an interim answer now... and revisit this question later in Phase 2.

(we can have...)

No one is standing in anyone's way. We have smart people who just disagree on the substance.

We have to assume the best of each other.

And not just on this topic.

These have “duly been taken into account,”

Sometimes progress is recognizing that there isn't enough consensus to make significant change outside those put forward in the Proposals.

We also were given a pretty scattered and messy charter full of badly written and not fully well-considered charter questions

I think we should record a good summary of these responses for the GNSO Council and future reviewers (future RPM WGs).

Helpful context, thanks Mary

Agree that the questions were raised. Also remind that these RPM's were put in place to counter the "worst" cases. They were the result of IRT and STI with community input. There is balance here. Neither side of the equation has gotten everything they have wanted. Years ago and now.

Could not agree more @Griffin, and this should be a lesson learned before any work on Phase II

Yes, the charter was a big impediment.

I think we all agree on that.

Agree Brian - I am very hopeful that GNSO Council will prepare a revised Phase 2 Charter that will be a better starting point

@Griffin, without commenting about the questions themselves, staff recalls that the fact that so many questions were sent in from prior work on RPMs that the Council decided to include them all, unchanged, in the PDP Charter for the WG to refine and decide how to address.

Yes I recall that Mary… it is a bit of a dereliction of the COuncil’s duty though not to have properly refined them up front, imo

Then there needed to be a charter committee. The WG lost 2 years of time sorting it out and we have been criticized for it.

Definitely not staff’s fault tho

Yes, not blaming staff.

I actually can understand Council's decision but hope that our experience will help refashion charter for phase 2

No worries, staff doesn’t think so either :) And these specific Additional Overarching Charter Questions (again, as distinct from the General Overarching ones) were not reviewed, drafted or modified by the Council. They are preserved “as is” from public comments submitted.

Perfectly OK to note in our report that not everyone was happy with the way registrant protections turned out. That's a fact, not an opinion.

Yeah and I think that was sorta the problem

Council really should have, in retrospect, actually reviewed and refined the questions so that we had something that was more neutral, cohesive, etc

I think it’s worth noting that there’s been literally no progress on around half of the issues raised here.

This question really seems to be a restatement of the previous question concerning free expression

although protection of IP is also recognized as a human right

I think we should just report the answer back.

Well, I think human rights is obviously a broad category, but certain concepts like free expression ,due process, and obviously protection of IP rights have all been part of our discussions

+1 Kathy

I’m a bit surprised Article 19 didn’t provide anything more substantive to this. They have a whole mechanism for assessing human rights at ICANN that they’ve been pushing forward

I think we can probably do some work on this in Phase 2.

Yes, human rights include right of authorship and right to the rewards of one's work as well as justice.

It's a panopoly.

+1 Griffin.

Well we have, we just didn’t refer to them as “human rights” - we have talked about due process, privacy, free expression issues etc

agree w Griffin and there is a human rights backstop here - now the Board will honor it core value on HR when it approves the work product here - if anything cuts against human rights it should be flagged but I do agree w Griffin that this is implicit in what we did

Am I reading this right? We have 1 response and it was "no opinion"?

Agree David

@Paul no I think there were others up abive

above

Thanks!

@David, just saw your comment and yes that seems to be the case here.

Tx you, Phil!

EU Charter of Fundamental Rights, Art 17, "Intellectual property shall be protected." Just to throw in an EU angle.

Thanks Phil, staff, and all

Thanks @Susan and noted

property also protected in UDHR

Good one, @Phil.

Agree with Susan re %s - it's very misleading overall (as said many times before).

@Susan - how unfortunate for us all that this wasn't more important.

bye all

@Cyntia, I think it's another of those questios that it's impossible to answer and so people didn't

Thanks all.

Next meeting is Thursday, 23 July at 17:00 UTC