Dear All,

Below are the action items and notes staff captured from the RPM Providers Sub Team meeting today (28 February 2018).  The notes from the call are posted to the Sub Team wiki space, together with the call recording and Adobe Connect chat and attendance records.

Please note that these notes are not meant as a substitute for the recording.

Best Regards,

Ariel

Ariel Xinyue Liang

Policy Analyst | Washington, DC 

Internet Corporation for Assigned Names and Numbers (ICANN) 

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ACTION ITEMS:

• Sub Team to develop objective questions with regard to the URS procedures, the Providers’ Supplemental Rules, and the URS High Level Technical Requirements for Registries and Registrars.
• Staff to create a table that lists/maps the URS Rules, URS procedures, Providers’ Supplemental Rules; the table should include columns for suggested questions and notes.
• When reviewing Providers’ Supplemental Rules, Sub Team to revisit Section 2(c), 5(a)(iv), 5(a)(v), 5(e), 5(k), and 7 in the URS Rules, and to check the Providers’ forms.  
• Staff to check how would the website resolve when the Respondent responded to the Complaint within the six-month period after the Default Determination, which rendered the suspension of the website due to infringement/being used in bad faith.
• Staff to check whether URS Determinations have been published by all Providers.
• Staff to check whether the three Providers establish and maintain the electronic abuse case database.
• Staff to post the URS High Level Technical Requirements for Registries and Registrars on wiki

NOTES:

I. Review of the URS Rules and propose questions

6. Examiner  

(a)

• Why the qualifications of some Examiners are not published, especially by ADNDRC?

Discussion:

- One possible recommendation from the WG may be asking ICANN to enforce this rule so all Examiners’ qualifications are published.

- ADNDRC has a number of offices in Asia with some degree of regional autonomy. Does this distributed system cause the qualifications of certain Examiners not being published?

9. Language of Proceedings

• Are all Examiners indeed fluent in English?
• Are the assigned Examiners fluent in the non-English language of the Response?
• Is there any challenge in the URS proceedings caused by the linguistic deficiencies of the Examiners?

Discussion:

- The indication of English fluency does not apply to all Examiners, but this does not mean they are not fluent in English. (Staff note: Some Examiners did indicate in their resumes that they have “good” or “fair” level of English skills, but not “excellent”).

10. Further Statements

• Has any Examiner violated this rule by requesting further statements or documents from either of the Parties?

11. In-Person Hearings

• Has the lack of in-person hearings been raised as an issue?

Discussion:

- MFSD confirmed that they have never conducted any in-person hearings (including teleconference, videoconference, web conference, etc.) and only reviewed written submissions.  

12. Default

(b)

• Can the Registry Operator block any change to the content of a website when a case enters Default?

ACTION ITEM: Staff to check how would the website resolve when the Respondent responded to the Complaint within the six-month period after the Default Determination, which rendered the suspension of the website due to infringement/being used in bad faith.

(e)

• What percentage of cases that the Respondent submitted an answer within six (6) months after a Default Determination?

(f)

• Has any Examiner drawn such inferences when a Party is not in compliance with URS Rules, Procedures, and Supplemental Rules, in the absence of exceptional circumstances?

13. Examiner Determination

(a)

• Has any Examiner evoked rules beyond the URS Rules, Procedures, and Supplemental Rules?

(b)

• Among Examiner’s Determinations, how many do not provide the reasons on which the Determination is based?

Discussion:

- This concerns with the qualitative review of the URS cases. Not all URS Determinations state the names of the attorneys of the Complaints and Respondents.

- A potential recommendation from the WG may be that the URS Determination to include additional required data elements (e.g., legal counsel involved, trademark, website content), which are required in UDRP cases, without overburden the Examiners.

(c)

• What are the “guidelines”? Are they referring to the Provider’s Supplemental Rules? If not, can Providers provide a copy of their guidelines?

(d)

• How often was this rule invoked? What factors have been considered by the Examiners in making that determination?

15. Determinations and Publications

(a)

ACTION ITEM: Staff to check whether URS Determinations have been published by all Providers.

(c)

• Has any Examiner determined to publish both the Default and Final Determination, when the Final Determination changes the Default Determination outcome for the same case?

(d)

• Has any Examiner determined to publish both the Default and Final Determination, when the Final Determination upholds the Default Determination outcome for the same case?

(e)

• What are your Examiners’ practice with regard to the publication of Appeal Determination?

(f)

• What is the rationale behind not linking the Determinations related to the same domain names and/or parties, but not part of the same case?
• Have you ever linked the Determinations related to the same domain names? If not, why not?
• How many Final Determinations were made by the same Examiner who also made the Default Determinations for the same case?

Discussion:

- Should the WG recommend ICANN to aggregate the Determinations from the separate databases managed by the three Providers and place them in one central database? By doing so, it may be helpful to detect bad faith registrants and detect other patterns.

16. Settlement or Other Grounds for Termination

(b)

• How many such incidents have been recorded by the Provider (before the Examiner’s Determination is made, it became unnecessary or impossible to continue the URS proceeding for any reason)?

17. Effect of Court Proceedings

(a)

• How often was a legal proceeding initiated prior to or during a URS proceeding? Have there been any intervening lawsuit?

Discussion:

- WG should check the data gathered by Berry and see what Examiners have been done in dealing with court proceedings.

18. Abusive Complaints

(d)

• Have the Providers registered any case of abuse?

(e)

ACTION ITEM: Staff to check whether the three Providers establish and maintain the electronic abuse case database.

(f)

• Do the Providers verify the admissibility of the Complaint against the abuse case database for every single URS case?

19. Appeal

(b)

• How do the Providers implement this rule? How do the Providers determine that the Appellant is in fact seeking to introduce new admissible evidence that is material to the Determination, clearly pre-dating the filing of the Complaint? Do the Providers conduct administrative check on this?

Discussion:

- This may be explained in the Supplemental Rules.

20. Exclusion of Liability

• Has any Provider or Examiner been directly sued for a URS Determination?

II. Review of MoU Between Providers and ICANN (Example: FORUM)

2(b)(v)

• What is the conflict of interest policy established by each Provider?
• When a conflict of interest has been discovered, what remedial actions have been taken?

2(b)(viii)

• How have the Providers complied with the obligation to establish and maintain a process to monitor URS abuse?

2(b)(x)

• Has ICANN ever enquired any information or data from the Providers?

2(c)

• Do ICANN and Providers maintain regular communications?

III. Next Steps & Future Meetings

• Future Sub Team Meetings:
  • No meeting next week (week of March 5)
  • May meet during ICANN61, pending Sub Team members’ availability
  • Estimated 2-3 more meetings after ICANN61; following meeting will take place at usual time (18:00 UTC).
• Draft Timeline:
  • Finalize Questions to Providers by late March/early April
  • Send the questions to Providers in the first week of April
  • Providers to submit answers by late April
  • Wrap up all URS related work before the conclusion of the Sunrise and Trademark surveys
• Additional Task: Sub Team to review the URS High Level Technical Requirements for Registries and Registrars.