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NCSG: ICANN Board-Staff Violated Its Own Corporate Bylaws By Unilaterally Imposing “TM+50 Policy”

Posted on the 08 November 2013 by Worldwide @thedomains

The Non-Commercial Stakeholders Group (NCSG) says ICANN Board-staff violated ICANN Bylaws by adopting the Trademark+50 policy without following the proper policy modification process

The specific policy at issue in this CEP is ICANN staff’s unilateral decision to grant trademark holders significantly greater rights via its “trademark plus 50” (“TM+50”) policy in contradiction to the GNSO Council’s policy recommendations and implementation guidance and the process described in ICANN’s Bylaws that govern its adoption of policy.

NCSG contends that the manner by which ICANN’s Board-staff adopted the TM+50 policy without following the proper policy modification process violates the organization’s Bylaws.

I.  ICANN Bylaws Annex A Mandates Bottom-Up Policy Development Process

ICANN’s Corporate Bylaws require the organization to develop and adopt policy via its Generic Name Supporting Organization (GNSO) in a “bottom up” fashion through the Policy Development Process (PDP) outlined in Annex A of the Bylaws:

“The following process shall govern the GNSO policy development process (“PDP”) until such time as modifications are recommended to and approved by the ICANN Board of Directors (“Board”). The role of the GNSO is outlined in Article X of these Bylaws.”

  - ICANN Corporate Bylaws – Annex A GNSO Policy Development Process  available at: http://www.icann.org/en/about/governance/bylaws#AnnexA and attached in full herewith below.

These Bylaws require ICANN staff to implement GNSO policies that have been approved (voted on) by both the GNSO Council and the ICANN Board of Directors.  They further permit the GNSO to oversee staff’s implementation of its approved policy recommendations and provide further guidance on that policy where appropriate.

Should the ICANN Board wish to adopt policy recommendations that contradict the GNSO Council’s policy recommendations, a process is outlined in Section 9 to permit that divergence should certain conditions be met.

It is precisely this reversal of GNSO negotiated policy by ICANN Board-staff without following proper process that is the heart of this complaint.  ICANN’s Bylaws provide for policy to be made from the bottom-up.  Thus if ICANN’s Board-staff wishes to impose contradictory policy from the top-down, it must adhere to the process in the Bylaws that includes procedural safeguards such as a discussion between the GNSO and the Board to work out policy differences followed by a 2/3rd vote by the Board to overturn the GNSO’s preferred policy.

That Bylaws-required process was not followed, nor even attempted in this case.  Instead, the GNSO-approved policy was reversed by staff quietly issuing a memo-edict to inform the community that it had changed the previously negotiated GNSO policy on the issue in favor of trademark holders.…


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