Dear All,

Below are the action items and notes staff captured from the RPM Providers Sub Team meeting today (21 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 continue reviewing and developing objective questions with regard to the URS Rules, and then proceed with the URS procedures, MoU between ICANN and Providers, and the Providers’ Supplemental Rules that contain variations.
• Staff to check whether the Providers maintain and make public available the list of URS examiners and their qualifications; staff to present the findings (e.g., screenshots) before or during the next Sub Team meeting (with regard to section 6a)
• 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.  

NOTES:

I. Starting point for developing questions for URS Providers

• Review the level of compliance of URS Providers and understand whether they follow the ICANN rules & procedures and in compliance with the MoU; this can be large checked by the Sub Team of ICANN staff.
• Ask what guidance that Providers have formally or informally given to the examiners
• See how implementation is done and how specific rules are approached. E.g., How examiners are selected? What background they have? What kind of training they have? How they determine the standard of proof in URS cases?  

II. Review of the URS Rules and propose questions

2. Communications

(a)(b)

• How do Providers send notification to the Respondent?
• Have Providers received responses from Respondents after the deadline?
• Is the deadline long enough?
• Do Providers have any notification of delayed communications?
• Do Providers have any notification of non-delivery of communications?

(c)

• In Providers’ Supplemental Rules, are there reasonable ways of communicating?

(f)

• What percentage of communications were done in ways rather than electronically/via the Internet?

(g)

• Do Providers conform with the communications timeline in accordance with this provision?  

(j)

• If Respondents did not receive notifications the first time, how could they report on the bounce back?

3. The Complaint

(a)(b)

• Do Providers accept complaint that don't contain all the elements required?
• Do Providers ask additional information beyond what is required in the URS Rules?

Discussion: We could check the forms Providers use for compatibility.

(e)

• Has any Provider used rules related to abusive complaint at all? Has any penalty been set forward?
• How have Providers complied with their MOU para 2(b)(viii) with regard to establishing and maintaining a process to monitor URS abuse

Discussion: Not sure how much inferences we could draw if not many cases that abusive complaint was applied. Most of the cases have been won by the Complaint. Perhaps check the complaint abuse case database on the Provider's site?

(g)

• Has a Provider conducted check on whether a domain case is already subject to an open and active URS or UDRP proceeding? If so, how did they find out?
• Do Providers rely on the information provided by the Complaint?
• Does anyone check for court cases in the event a Respondent doesn't respond?
• How do Providers view their responsibility under the provision 3(g)?

Discussion:

• Don’t need to worry too much about this provision. It is a responsibility of a Provider, and the Complaint may run the risk of being abusive if the case is filed with other URS Providers or UDRP. If a case is filed with different Providers, the parties are obligated to inform the Provider if other channels are utilized.
• The rule didn't provide clarification on whose responsibility it is to check whether the domain name case is already in an open and active URS or UDRP proceeding.
• There are several cases that a TM holder has put out a URS proceeding when the Respondent couldn't respond.
• Unless the Complaint was withdrawn on a without prejudice basis, then they can refile and should not be considered as abusive.
• What file extension do .SMD files carry? There is no SMD file requirement. Providing a .SMD file is a simpler way to provide the data if a trademark has been registered in the TMCH. The TMCH sends the TM-holder an .SMD file as confirmation. This provision allows TM holders to forward that file to the Provider as their TM proof.

4. Notice of Complaint and Locking of Domain

(b)

• Are Providers checking WHOIS info in order to determine the language to be used to transmit the Notice of Complaint?

Discussion: Language question is covered in Rule 9

(c)

• Are Providers following this provision of rules?

5. The Response

(a) (iii)

• Have Providers gotten Responses alleging any abusive complaint? If so, how did Providers act in those cases?  

(a) (iv)

Discussion:

• The terminology used in this provision needs to be modified to be consistent. Not clear what does legal proceedings encompass.  
• Possible Recommendation: Standardization of language/terminology used in the URS Rules.
• We should see Providers’ forms. There may be different pieces of information required, depending on the forms. This can be done when Supplemental Rules are being reviewed.

(a) (v)

• Is the statement included in the Providers’ forms?  

(e)

• How often has the Respondent asked for an extension?
• How often has the Complaint asked for an extension?
• What is considered "exceptional cases"?

Discussion: Sub Team should review how Providers handle this provision in their Supplemental Rules.

(f)

• Has the Provider ever received affirmative claims for relief by the Respondent for reasons beyond an abusive complaint?

(g)  

• Has the Provider conducted a compliance check for a Respondent for factors beyond the two items stated in the provision?

(i)

• How many Responses were determined non-compliant?
• How many Responses were filed but with fees not paid?
• Can Providers identify any cases in which they determined the Responses is non-compliant for reasons other than the payment of the fee?

Discussion:

• This provision should be addressed in the Practitioners Sub Team.
• Asking these questions can give us a subset of cases to review their decisions for.
• Respondents don't need to pay any fee unless there are 15 domain cases or more. Reexamination fee applicable for <15 domains

(k)  

Discussion:

• The language used in this provision seems super-confusing & could be clarified.
• Sub Team will not try to form a question now. Check this when reviewing the Supplemental Rules. It seems like an odd fact situation.

6. Examiner

(a)  

ACTION: Staff to check whether the Providers maintain and make public available the list of URS examiners and their qualifications and present the findings (e.g., screenshots) before or during the next Sub Team meeting.

(b)

• Did the Providers make the examiners aware of their needs to be impartial and independent?
• Has there been any circumstance that gave rise to justifiable doubt of the independence/impartiality of an examiner? If so, did the examiner disclose this before and/or during the case proceeding? If no, what happened?
• Does the Respondent have the ability to point out the conflict of interest/bias from the examiner? Can they do so in their responses?
• Is there a situation that a Respondent was aware of the conflict of interest of an examiner? Is there a situation that a Respondent pointed this out?  
• Is there any possibility for examiner-shopping?

Discussion:

• Who decides exactly on impartiality or independence of an examiner? “Independence”, “impartiality”, and “justifiable doubt” are subjective standards. Would it be useful to dig more into the phrases to understand what they means, what constitutes a conflict, and how does a Provider look into that? Whether it is based on initial disclosure by the examiner, or the interpretation of the standards?
• This question is also related to the background and expertise of the examiners.
• General rules should be established so that people are confident that examiners are not biased.
• There may be professional conduct requirements/guidelines to enforce the impartiality and independence of the examiner.  

7. Communication Between Parties and the Examiner

Discussion: Sub Team will revisit this provision when reviewing Providers' Supplemental Rules.

8. General Powers of the Examiner

(d)

• Does the Provider know any situation that the nominal registrant changed after the complaint was filed? If so, how did the Provider handle it?
• How many complaints have been dismissed on the basis of the wrong Respondent being named, where the domain was registered with a privacy/proxy service?