Actions & Notes: RPM Providers Sub Team 29 August 2018
Dear All, Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS.... See also the attached referenced documents. Best Regards, Julie Julie Hedlund, Policy Director == ACTION ITEMS: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. NOTES: Operational Fixes: A. THE COMPLAINT 4. Administrative review A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? -- Accept the suggested revised language. 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. -and- GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS [rules for the timely response by Registries to requests for non-public information from Providers] -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? -- Accept the suggested revised language with strikeouts and additional text in brackets. B. NOTICE 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. -- Accept the suggested revised language. 2. Effect on Registry Operator - Notice requirements for Registry Operators ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date -and- GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". -- Accept the suggested revised language with additional text in brackets. F. REMEDIES 3. Review of Implementation There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process -- Accept the suggested revised language ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. J. LANGUAGE ISSUES 1. Language issues, including current requirements for complaint, notice of complaint, response, determination ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. -- Accept the suggested revised language. M. URS PROVIDERS 1. Evaluation of URS providers and their respective processes (including training of panelists) Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. -- Accept the suggested revised language. Policy Proposals: A. THE COMPLAINT 6. Amending the Complaint in light of GDPR/Temp Spec URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. -and- URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. -and- Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. -- Accept the suggested revised language. -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. B. NOTICE 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. -- Accept the suggested revised language with additional text in brackets. E. DEFENSES 1. Scope of Defenses 2. Unreasonable delay in filing a complaint (i.e. laches) All Providers should provide similar types and forms of guidance to their examiners. -and- Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. -- Accept the suggested revised language. F. REMEDIES 2. Duration of Suspension Period 3. Review of Implementation URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. -- Do we need to mention ICANN Compliance role at all? Reword accordingly. -- Accept the suggested revised language. K. ABUSE OF PROCESS 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" -- Accept the suggested approach. Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." -- Not sure why this should be a concern since the information about the country should be available. -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. -- Change from a recommendation to an action. L. EDUCATION & TRAINING 1. Responsibility for education and training of complainants, registrants, registry operators and registrars ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) -and- URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. -- Accept the suggested revised language. M. URS PROVIDERS 1. Evaluation of URS providers and their respective processes (including training of panelists) Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. -- I don't think we identified that there was a problem. -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. -- Accept the suggested revised language with strikeouts and additional text in brackets.
Regarding my action item, how about: ICANN Compliance ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] On Behalf Of Julie Hedlund Sent: 29 August 2018 14:42 To: gnso-rpm-providers@icann.org Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Dear All, Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS.... See also the attached referenced documents. Best Regards, Julie Julie Hedlund, Policy Director == ACTION ITEMS: 1. Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. 2. Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. NOTES: Operational Fixes: A. THE COMPLAINT 4. Administrative review A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? -- Accept the suggested revised language. 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. -and- GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS [rules for the timely response by Registries to requests for non-public information from Providers] -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? -- Accept the suggested revised language with strikeouts and additional text in brackets. B. NOTICE 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. -- Accept the suggested revised language. 2. Effect on Registry Operator - Notice requirements for Registry Operators ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date -and- GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". -- Accept the suggested revised language with additional text in brackets. F. REMEDIES 3. Review of Implementation There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process -- Accept the suggested revised language ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. J. LANGUAGE ISSUES 1. Language issues, including current requirements for complaint, notice of complaint, response, determination ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. -- Accept the suggested revised language. M. URS PROVIDERS 1. Evaluation of URS providers and their respective processes (including training of panelists) Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. -- Accept the suggested revised language. Policy Proposals: A. THE COMPLAINT 6. Amending the Complaint in light of GDPR/Temp Spec URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. -and- URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. -and- Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. -- Accept the suggested revised language. -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. B. NOTICE 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. -- Accept the suggested revised language with additional text in brackets. E. DEFENSES 1. Scope of Defenses 2. Unreasonable delay in filing a complaint (i.e. laches) All Providers should provide similar types and forms of guidance to their examiners. -and- Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. -- Accept the suggested revised language. F. REMEDIES 2. Duration of Suspension Period 3. Review of Implementation URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. -- Do we need to mention ICANN Compliance role at all? Reword accordingly. -- Accept the suggested revised language. K. ABUSE OF PROCESS 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" -- Accept the suggested approach. Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." -- Not sure why this should be a concern since the information about the country should be available. -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. -- Change from a recommendation to an action. L. EDUCATION & TRAINING 1. Responsibility for education and training of complainants, registrants, registry operators and registrars ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) -and- URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. -- Accept the suggested revised language. M. URS PROVIDERS 1. Evaluation of URS providers and their respective processes (including training of panelists) Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. -- I don't think we identified that there was a problem. -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. -- Accept the suggested revised language with strikeouts and additional text in brackets.
That looks great to me. Thanks very much for taking the initiative here, Susan. On Wed, Aug 29, 2018 at 2:09 PM Susan Payne <susan.payne@valideus.com> wrote:
Regarding my action item, how about:
ICANN Compliance
ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information .
In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension.
*Susan Payne Head of Legal Policy* | *Valideus Ltd * E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
*From:* Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] *On Behalf Of *Julie Hedlund *Sent:* 29 August 2018 14:42 *To:* gnso-rpm-providers@icann.org *Subject:* [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Dear All,
Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. *Please note that these will be high-level notes and are not meant as a substitute for the recording.* The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS....
See also the attached referenced documents.
Best Regards,
Julie
Julie Hedlund, Policy Director
==
*ACTION ITEMS: *
1. Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. 2. Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday.
*NOTES:*
*Operational Fixes:*
A. THE COMPLAINT
4. Administrative review
*A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding.*
-- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check?
-- Accept the suggested revised language.
6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6
*Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data.*
-and-
*GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS *
*[*rules * for the timely response by Registries to requests for non-public information from Providers]*
-- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers?
-- Accept the suggested revised language with strikeouts and additional text in brackets.
B. NOTICE
1. Receipt by Registrant - Notice (feedback from Complainant & Respondent)
*ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail.*
-- Accept the suggested revised language.
2. Effect on Registry Operator - Notice requirements for Registry Operators
*ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date*
-and-
*GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements*
-- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers".
-- Accept the suggested revised language with additional text in brackets.
F. REMEDIES
3. Review of Implementation
*There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process*
-- Accept the suggested revised language
ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring.
J. LANGUAGE ISSUES
1. Language issues, including current requirements for complaint, notice of complaint, response, determination
*ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”.*
-- Accept the suggested revised language.
M. URS PROVIDERS
1. Evaluation of URS providers and their respective processes (including training of panelists)
*Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. *
-- Accept the suggested revised language.
*Policy Proposals:*
A. THE COMPLAINT
6. Amending the Complaint in light of GDPR/Temp Spec
*URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. *
-and-
*URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider.*
-and-
*Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU.*
-- Accept the suggested revised language.
-- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note.
B. NOTICE
1. Receipt by Registrant -Notice (feedback from Complainant & Respondent)
*For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry.*
-- Accept the suggested revised language with additional text in brackets.
E. DEFENSES
1. Scope of Defenses
2. Unreasonable delay in filing a complaint (i.e. laches)
*All Providers should provide similar types and forms of guidance to their examiners.*
-and-
*Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited.*
-- Accept the suggested revised language.
F. REMEDIES
2. Duration of Suspension Period
3. Review of Implementation
*URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension.*
-- Do we need to mention ICANN Compliance role at all? Reword accordingly.
-- Accept the suggested revised language.
K. ABUSE OF PROCESS
1. Misuse of the process, including by trademark owners, registrants and “repeat offenders”
*Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner.*
-- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it.
-- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation.
-- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?"
-- Accept the suggested approach.
Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns."
-- Not sure why this should be a concern since the information about the country should be available.
-- Agree GDPR should not be a concern insofar as country of Registrant is concerned.
-- Change from a recommendation to an action.
L. EDUCATION & TRAINING
1. Responsibility for education and training of complainants, registrants, registry operators and registrars
*ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents)*
-and-
*URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. *
-- Accept the suggested revised language.
M. URS PROVIDERS
1. Evaluation of URS providers and their respective processes (including training of panelists)
*Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed.*
-- I don't think we identified that there was a problem.
-- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items.
-- Accept the suggested revised language with strikeouts and additional text in brackets. _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
That works for me, Susan, thanks. Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). Regards, Justine ----- On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com> wrote:
Regarding my action item, how about:
ICANN Compliance
ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information .
In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension.
*Susan Payne Head of Legal Policy* | *Valideus Ltd * E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
*From:* Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] *On Behalf Of *Julie Hedlund *Sent:* 29 August 2018 14:42 *To:* gnso-rpm-providers@icann.org *Subject:* [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Dear All,
Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. *Please note that these will be high-level notes and are not meant as a substitute for the recording.* The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS....
See also the attached referenced documents.
Best Regards,
Julie
Julie Hedlund, Policy Director
==
*ACTION ITEMS: *
1. Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. 2. Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday.
*NOTES:*
*Operational Fixes:*
A. THE COMPLAINT
4. Administrative review
*A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding.*
-- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check?
-- Accept the suggested revised language.
6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6
*Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data.*
-and-
*GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS *
*[*rules * for the timely response by Registries to requests for non-public information from Providers]*
-- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers?
-- Accept the suggested revised language with strikeouts and additional text in brackets.
B. NOTICE
1. Receipt by Registrant - Notice (feedback from Complainant & Respondent)
*ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail.*
-- Accept the suggested revised language.
2. Effect on Registry Operator - Notice requirements for Registry Operators
*ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date*
-and-
*GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements*
-- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers".
-- Accept the suggested revised language with additional text in brackets.
F. REMEDIES
3. Review of Implementation
*There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process*
-- Accept the suggested revised language
ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring.
J. LANGUAGE ISSUES
1. Language issues, including current requirements for complaint, notice of complaint, response, determination
*ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”.*
-- Accept the suggested revised language.
M. URS PROVIDERS
1. Evaluation of URS providers and their respective processes (including training of panelists)
*Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. *
-- Accept the suggested revised language.
*Policy Proposals:*
A. THE COMPLAINT
6. Amending the Complaint in light of GDPR/Temp Spec
*URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. *
-and-
*URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider.*
-and-
*Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU.*
-- Accept the suggested revised language.
-- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note.
B. NOTICE
1. Receipt by Registrant -Notice (feedback from Complainant & Respondent)
*For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry.*
-- Accept the suggested revised language with additional text in brackets.
E. DEFENSES
1. Scope of Defenses
2. Unreasonable delay in filing a complaint (i.e. laches)
*All Providers should provide similar types and forms of guidance to their examiners.*
-and-
*Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited.*
-- Accept the suggested revised language.
F. REMEDIES
2. Duration of Suspension Period
3. Review of Implementation
*URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension.*
-- Do we need to mention ICANN Compliance role at all? Reword accordingly.
-- Accept the suggested revised language.
K. ABUSE OF PROCESS
1. Misuse of the process, including by trademark owners, registrants and “repeat offenders”
*Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner.*
-- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it.
-- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation.
-- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?"
-- Accept the suggested approach.
Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns."
-- Not sure why this should be a concern since the information about the country should be available.
-- Agree GDPR should not be a concern insofar as country of Registrant is concerned.
-- Change from a recommendation to an action.
L. EDUCATION & TRAINING
1. Responsibility for education and training of complainants, registrants, registry operators and registrars
*ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents)*
-and-
*URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. *
-- Accept the suggested revised language.
M. URS PROVIDERS
1. Evaluation of URS providers and their respective processes (including training of panelists)
*Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed.*
-- I don't think we identified that there was a problem.
-- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items.
-- Accept the suggested revised language with strikeouts and additional text in brackets. _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 From: Justine Chew [mailto:justine.chew@gmail.com] Sent: 29 August 2018 18:27 To: Susan Payne <susan.payne@valideus.com> Cc: Julie Hedlund <julie.hedlund@icann.org>; gnso-rpm-providers@icann.org Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 That works for me, Susan, thanks. Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). Regards, Justine ----- On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: Regarding my action item, how about: ICANN Compliance ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org>] On Behalf Of Julie Hedlund Sent: 29 August 2018 14:42 To: gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Dear All, Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS.... See also the attached referenced documents. Best Regards, Julie Julie Hedlund, Policy Director == ACTION ITEMS: 1. Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. 2. Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. NOTES: Operational Fixes: A. THE COMPLAINT 4. Administrative review A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? -- Accept the suggested revised language. 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. -and- GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS [rules for the timely response by Registries to requests for non-public information from Providers] -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? -- Accept the suggested revised language with strikeouts and additional text in brackets. B. NOTICE 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. -- Accept the suggested revised language. 2. Effect on Registry Operator - Notice requirements for Registry Operators ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date -and- GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". -- Accept the suggested revised language with additional text in brackets. F. REMEDIES 3. Review of Implementation There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process -- Accept the suggested revised language ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. J. LANGUAGE ISSUES 1. Language issues, including current requirements for complaint, notice of complaint, response, determination ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. -- Accept the suggested revised language. M. URS PROVIDERS 1. Evaluation of URS providers and their respective processes (including training of panelists) Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. -- Accept the suggested revised language. Policy Proposals: A. THE COMPLAINT 6. Amending the Complaint in light of GDPR/Temp Spec URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. -and- URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. -and- Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. -- Accept the suggested revised language. -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. B. NOTICE 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. -- Accept the suggested revised language with additional text in brackets. E. DEFENSES 1. Scope of Defenses 2. Unreasonable delay in filing a complaint (i.e. laches) All Providers should provide similar types and forms of guidance to their examiners. -and- Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. -- Accept the suggested revised language. F. REMEDIES 2. Duration of Suspension Period 3. Review of Implementation URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. -- Do we need to mention ICANN Compliance role at all? Reword accordingly. -- Accept the suggested revised language. K. ABUSE OF PROCESS 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" -- Accept the suggested approach. Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." -- Not sure why this should be a concern since the information about the country should be available. -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. -- Change from a recommendation to an action. L. EDUCATION & TRAINING 1. Responsibility for education and training of complainants, registrants, registry operators and registrars ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) -and- URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. -- Accept the suggested revised language. M. URS PROVIDERS 1. Evaluation of URS providers and their respective processes (including training of panelists) Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. -- I don't think we identified that there was a problem. -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. -- Accept the suggested revised language with strikeouts and additional text in brackets. _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. Justine ----- On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com> wrote:
Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a):
“2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, *or* employing the following measures to do so, shall discharge this responsibility…”
However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service.
*Susan Payne Head of Legal Policy* | *Valideus Ltd * E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
*From:* Justine Chew [mailto:justine.chew@gmail.com] *Sent:* 29 August 2018 18:27 *To:* Susan Payne <susan.payne@valideus.com> *Cc:* Julie Hedlund <julie.hedlund@icann.org>; gnso-rpm-providers@icann.org *Subject:* Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
That works for me, Susan, thanks.
Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a).
Regards,
Justine -----
On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com> wrote:
Regarding my action item, how about:
ICANN Compliance
ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information .
In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension.
*Susan Payne Head of Legal Policy* | *Valideus Ltd * E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
*From:* Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] *On Behalf Of *Julie Hedlund *Sent:* 29 August 2018 14:42 *To:* gnso-rpm-providers@icann.org *Subject:* [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Dear All,
Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. *Please note that these will be high-level notes and are not meant as a substitute for the recording.* The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS....
See also the attached referenced documents.
Best Regards,
Julie
Julie Hedlund, Policy Director
==
*ACTION ITEMS: *
1. Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. 2. Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday.
*NOTES:*
*Operational Fixes:*
A. THE COMPLAINT
4. Administrative review
*A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding.*
-- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check?
-- Accept the suggested revised language.
6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6
*Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data.*
-and-
*GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS *
*[*rules *for the timely response by Registries to requests for non-public information from Providers]*
-- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers?
-- Accept the suggested revised language with strikeouts and additional text in brackets.
B. NOTICE
1. Receipt by Registrant - Notice (feedback from Complainant & Respondent)
*ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail.*
-- Accept the suggested revised language.
2. Effect on Registry Operator - Notice requirements for Registry Operators
*ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date*
-and-
*GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements*
-- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers".
-- Accept the suggested revised language with additional text in brackets.
F. REMEDIES
3. Review of Implementation
*There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process*
-- Accept the suggested revised language
ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring.
J. LANGUAGE ISSUES
1. Language issues, including current requirements for complaint, notice of complaint, response, determination
*ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”.*
-- Accept the suggested revised language.
M. URS PROVIDERS
1. Evaluation of URS providers and their respective processes (including training of panelists)
*Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. *
-- Accept the suggested revised language.
*Policy Proposals:*
A. THE COMPLAINT
6. Amending the Complaint in light of GDPR/Temp Spec
*URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. *
-and-
*URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider.*
-and-
*Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU.*
-- Accept the suggested revised language.
-- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note.
B. NOTICE
1. Receipt by Registrant -Notice (feedback from Complainant & Respondent)
*For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry.*
-- Accept the suggested revised language with additional text in brackets.
E. DEFENSES
1. Scope of Defenses
2. Unreasonable delay in filing a complaint (i.e. laches)
*All Providers should provide similar types and forms of guidance to their examiners.*
-and-
*Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited.*
-- Accept the suggested revised language.
F. REMEDIES
2. Duration of Suspension Period
3. Review of Implementation
*URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension.*
-- Do we need to mention ICANN Compliance role at all? Reword accordingly.
-- Accept the suggested revised language.
K. ABUSE OF PROCESS
1. Misuse of the process, including by trademark owners, registrants and “repeat offenders”
*Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner.*
-- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it.
-- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation.
-- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?"
-- Accept the suggested approach.
Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns."
-- Not sure why this should be a concern since the information about the country should be available.
-- Agree GDPR should not be a concern insofar as country of Registrant is concerned.
-- Change from a recommendation to an action.
L. EDUCATION & TRAINING
1. Responsibility for education and training of complainants, registrants, registry operators and registrars
*ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents)*
-and-
*URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. *
-- Accept the suggested revised language.
M. URS PROVIDERS
1. Evaluation of URS providers and their respective processes (including training of panelists)
*Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed.*
-- I don't think we identified that there was a problem.
-- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items.
-- Accept the suggested revised language with strikeouts and additional text in brackets.
_______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility. Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com> wrote:
...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database ....
ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint.
So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate.
Justine -----
On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com> wrote:
Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a):
“2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…”
However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service.
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
From: Justine Chew [mailto:justine.chew@gmail.com] Sent: 29 August 2018 18:27 To: Susan Payne <susan.payne@valideus.com> Cc: Julie Hedlund <julie.hedlund@icann.org>; gnso-rpm-providers@icann.org Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
That works for me, Susan, thanks.
Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a).
Regards,
Justine -----
On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com> wrote:
Regarding my action item, how about:
ICANN Compliance
ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information .
In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension.
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] On Behalf Of Julie Hedlund Sent: 29 August 2018 14:42 To: gnso-rpm-providers@icann.org Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Dear All,
Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS....
See also the attached referenced documents.
Best Regards,
Julie
Julie Hedlund, Policy Director
==
ACTION ITEMS:
Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday.
NOTES:
Operational Fixes:
A. THE COMPLAINT
4. Administrative review
A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding.
-- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check?
-- Accept the suggested revised language.
6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6
Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data.
-and-
GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS
[rules for the timely response by Registries to requests for non-public information from Providers]
-- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers?
-- Accept the suggested revised language with strikeouts and additional text in brackets.
B. NOTICE
1. Receipt by Registrant - Notice (feedback from Complainant & Respondent)
ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail.
-- Accept the suggested revised language.
2. Effect on Registry Operator - Notice requirements for Registry Operators
ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date
-and-
GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements
-- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers".
-- Accept the suggested revised language with additional text in brackets.
F. REMEDIES
3. Review of Implementation
There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process
-- Accept the suggested revised language
ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring.
J. LANGUAGE ISSUES
1. Language issues, including current requirements for complaint, notice of complaint, response, determination
ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”.
-- Accept the suggested revised language.
M. URS PROVIDERS
1. Evaluation of URS providers and their respective processes (including training of panelists)
Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest.
-- Accept the suggested revised language.
Policy Proposals:
A. THE COMPLAINT
6. Amending the Complaint in light of GDPR/Temp Spec
URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”.
-and-
URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider.
-and-
Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU.
-- Accept the suggested revised language.
-- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note.
B. NOTICE
1. Receipt by Registrant -Notice (feedback from Complainant & Respondent)
For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry.
-- Accept the suggested revised language with additional text in brackets.
E. DEFENSES
1. Scope of Defenses
2. Unreasonable delay in filing a complaint (i.e. laches)
All Providers should provide similar types and forms of guidance to their examiners.
-and-
Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited.
-- Accept the suggested revised language.
F. REMEDIES
2. Duration of Suspension Period
3. Review of Implementation
URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension.
-- Do we need to mention ICANN Compliance role at all? Reword accordingly.
-- Accept the suggested revised language.
K. ABUSE OF PROCESS
1. Misuse of the process, including by trademark owners, registrants and “repeat offenders”
Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner.
-- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it.
-- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation.
-- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?"
-- Accept the suggested approach.
Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns."
-- Not sure why this should be a concern since the information about the country should be available.
-- Agree GDPR should not be a concern insofar as country of Registrant is concerned.
-- Change from a recommendation to an action.
L. EDUCATION & TRAINING
1. Responsibility for education and training of complainants, registrants, registry operators and registrars
ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents)
-and-
URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties.
-- Accept the suggested revised language.
M. URS PROVIDERS
1. Evaluation of URS providers and their respective processes (including training of panelists)
Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed.
-- I don't think we identified that there was a problem.
-- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items.
-- Accept the suggested revised language with strikeouts and additional text in brackets.
_______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
_______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
Hello everyone, If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved. If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table. On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording? Thanks and cheers Mary, Julie & Ariel On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" <gnso-rpm-providers-bounces@icann.org on behalf of mkaranicolas@gmail.com> wrote: Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility. Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com> >> Cc: Julie Hedlund <julie.hedlund@icann.org>; gnso-rpm-providers@icann.org >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS.... >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
Hi Mary, In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another. So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly". Regards, Justine ----- On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org> wrote:
Hello everyone,
If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved.
If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table.
On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording?
Thanks and cheers Mary, Julie & Ariel
On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" < gnso-rpm-providers-bounces@icann.org on behalf of mkaranicolas@gmail.com> wrote:
Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility.
Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com> >> Cc: Julie Hedlund <julie.hedlund@icann.org>; gnso-rpm-providers@icann.org >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto: gnso-rpm-providers-bounces@icann.org] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS... . >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
Thanks Mary, and Justine, Again, if I may, observing this subteam, I would point out that actual notice in all cases would simply be an impossible standard. Despite clear obligations on registrants to provide accurate contact details -- which are in turn supposed to be vetted by registrars -- notably including an email address (for an Internet-based domain name registration), not infrequently registrant's (intentionally) use false contact details. I imagine that these factors significantly underpin the standard of "reasonable means" (or actual notice) in seeking to effect notice. Brian ________________________________ From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org> on behalf of Justine Chew <justine.chew@gmail.com> Sent: Thursday, August 30, 2018 5:48 AM To: Mary Wong Cc: gnso-rpm-providers@icann.org Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Hi Mary, In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another. So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly". Regards, Justine ----- On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello everyone, If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved. If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table. On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording? Thanks and cheers Mary, Julie & Ariel On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" <gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org> on behalf of mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>> wrote: Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility. Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com<mailto:justine.chew@gmail.com>] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> >> Cc: Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>>; gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org>] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS.... >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. 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Hi Brian, Are you weighing in now in your role as a co-chair? Michael On Thu, Aug 30, 2018 at 8:04 AM BECKHAM, Brian <brian.beckham@wipo.int> wrote:
Thanks Mary, and Justine,
Again, if I may, observing this subteam, I would point out that actual notice in all cases would simply be an impossible standard.
Despite clear obligations on registrants to provide accurate contact details -- which are in turn supposed to be vetted by registrars -- notably including an email address (for an Internet-based domain name registration), not infrequently registrant's (intentionally) use false contact details.
I imagine that these factors significantly underpin the standard of "reasonable means" (or actual notice) in seeking to effect notice.
Brian
________________________________ From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org> on behalf of Justine Chew <justine.chew@gmail.com> Sent: Thursday, August 30, 2018 5:48 AM To: Mary Wong Cc: gnso-rpm-providers@icann.org Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Hi Mary,
In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another.
So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly".
Regards,
Justine -----
On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org> wrote:
Hello everyone,
If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved.
If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table.
On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording?
Thanks and cheers Mary, Julie & Ariel
On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" <gnso-rpm-providers-bounces@icann.org on behalf of mkaranicolas@gmail.com> wrote:
Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility.
Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com> >> Cc: Julie Hedlund <julie.hedlund@icann.org>; gnso-rpm-providers@icann.org >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS.... >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
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My personal view is that, as Mary suggested, “Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved”. We can’t expect providers to send out agents to physically locate domain registrants and ask them F2F if they received notice. As Brian notes, in some cases registrants deliberately provide false contact information because they know the are registering and using domains in bad faith and don’t want to be identified. In other cases, and this will occur more as new gTLDs age, the original contact data was correct but it hasn’t been updated and now the fax number has changed or been disconnected, the email address is no longer used and checked, and they have moved from the original physical address without leaving forwarding information. Also, while default rates in URS are high, they are almost as high for UDRP and I don’t recall seeing much if any anecdotal information about registrants who provided correct contact data not getting actual notice in UDRP practice. Another consideration is that, if there is a failure to deliver notice in a timely manner, the URS consequence is less harsh (domain suspension, not extinguishment or transfer) and the opportunities for post-default rehearing are more generous. For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts. Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] On Behalf Of BECKHAM, Brian Sent: Thursday, August 30, 2018 7:04 AM To: Justine Chew <justine.chew@gmail.com>; Mary Wong <mary.wong@icann.org> Cc: gnso-rpm-providers@icann.org Subject: [EXTERNAL] Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Thanks Mary, and Justine, Again, if I may, observing this subteam, I would point out that actual notice in all cases would simply be an impossible standard. Despite clear obligations on registrants to provide accurate contact details -- which are in turn supposed to be vetted by registrars -- notably including an email address (for an Internet-based domain name registration), not infrequently registrant's (intentionally) use false contact details. I imagine that these factors significantly underpin the standard of "reasonable means" (or actual notice) in seeking to effect notice. Brian _____ From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org>> on behalf of Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Sent: Thursday, August 30, 2018 5:48 AM To: Mary Wong Cc: gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Hi Mary, In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another. So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly". Regards, Justine ----- On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello everyone, If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved. If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table. On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording? Thanks and cheers Mary, Julie & Ariel On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" <gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org> on behalf of mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>> wrote: Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility. Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com<mailto:justine.chew@gmail.com>] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> >> Cc: Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>>; gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org>] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS.... >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. 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Good points, Phil. Cyntia King O: +1 816.633.7647 C: +1 818.209.6088 From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org> On Behalf Of Corwin, Philip via Gnso-rpm-providers Sent: Thursday, August 30, 2018 2:34 PM To: brian.beckham@wipo.int; justine.chew@gmail.com; mary.wong@icann.org Cc: gnso-rpm-providers@icann.org Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 My personal view is that, as Mary suggested, “Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved”. We can’t expect providers to send out agents to physically locate domain registrants and ask them F2F if they received notice. As Brian notes, in some cases registrants deliberately provide false contact information because they know the are registering and using domains in bad faith and don’t want to be identified. In other cases, and this will occur more as new gTLDs age, the original contact data was correct but it hasn’t been updated and now the fax number has changed or been disconnected, the email address is no longer used and checked, and they have moved from the original physical address without leaving forwarding information. Also, while default rates in URS are high, they are almost as high for UDRP and I don’t recall seeing much if any anecdotal information about registrants who provided correct contact data not getting actual notice in UDRP practice. Another consideration is that, if there is a failure to deliver notice in a timely manner, the URS consequence is less harsh (domain suspension, not extinguishment or transfer) and the opportunities for post-default rehearing are more generous. For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts. Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] On Behalf Of BECKHAM, Brian Sent: Thursday, August 30, 2018 7:04 AM To: Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com> >; Mary Wong <mary.wong@icann.org <mailto:mary.wong@icann.org> > Cc: gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org> Subject: [EXTERNAL] Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Thanks Mary, and Justine, Again, if I may, observing this subteam, I would point out that actual notice in all cases would simply be an impossible standard. Despite clear obligations on registrants to provide accurate contact details -- which are in turn supposed to be vetted by registrars -- notably including an email address (for an Internet-based domain name registration), not infrequently registrant's (intentionally) use false contact details. I imagine that these factors significantly underpin the standard of "reasonable means" (or actual notice) in seeking to effect notice. Brian _____ From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org <mailto:gnso-rpm-providers-bounces@icann.org> > on behalf of Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com> > Sent: Thursday, August 30, 2018 5:48 AM To: Mary Wong Cc: gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Hi Mary, In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another. So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly". Regards, Justine ----- On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org <mailto:mary.wong@icann.org> > wrote: Hello everyone, If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved. If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table. On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording? Thanks and cheers Mary, Julie & Ariel On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" <gnso-rpm-providers-bounces@icann.org <mailto:gnso-rpm-providers-bounces@icann.org> on behalf of mkaranicolas@gmail.com <mailto:mkaranicolas@gmail.com> > wrote: Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility. Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com> > wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com> > wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com <mailto:justine.chew@gmail.com> ] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com> >> Cc: Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org> >; gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org> >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com> > wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org <mailto:gnso-rpm-providers-bounces@icann.org> ] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org> >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS.... >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org <mailto:Gnso-rpm-providers@icann.org> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org <mailto:Gnso-rpm-providers@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org <mailto:Gnso-rpm-providers@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. 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It really sounds that Phill got it right for all. Cheers, Martín
On 30 Aug 2018, at 16:33, Corwin, Philip via Gnso-rpm-providers <gnso-rpm-providers@icann.org> wrote:
My personal view is that, as Mary suggested, “Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved”. We can’t expect providers to send out agents to physically locate domain registrants and ask them F2F if they received notice. <>
As Brian notes, in some cases registrants deliberately provide false contact information because they know the are registering and using domains in bad faith and don’t want to be identified. In other cases, and this will occur more as new gTLDs age, the original contact data was correct but it hasn’t been updated and now the fax number has changed or been disconnected, the email address is no longer used and checked, and they have moved from the original physical address without leaving forwarding information.
Also, while default rates in URS are high, they are almost as high for UDRP and I don’t recall seeing much if any anecdotal information about registrants who provided correct contact data not getting actual notice in UDRP practice. Another consideration is that, if there is a failure to deliver notice in a timely manner, the URS consequence is less harsh (domain suspension, not extinguishment or transfer) and the opportunities for post-default rehearing are more generous.
For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts.
Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell
"Luck is the residue of design" -- Branch Rickey
From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] On Behalf Of BECKHAM, Brian Sent: Thursday, August 30, 2018 7:04 AM To: Justine Chew <justine.chew@gmail.com>; Mary Wong <mary.wong@icann.org> Cc: gnso-rpm-providers@icann.org Subject: [EXTERNAL] Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Thanks Mary, and Justine,
Again, if I may, observing this subteam, I would point out that actual notice in all cases would simply be an impossible standard.
Despite clear obligations on registrants to provide accurate contact details -- which are in turn supposed to be vetted by registrars -- notably including an email address (for an Internet-based domain name registration), not infrequently registrant's (intentionally) use false contact details.
I imagine that these factors significantly underpin the standard of "reasonable means" (or actual notice) in seeking to effect notice.
Brian
From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org <mailto:gnso-rpm-providers-bounces@icann.org>> on behalf of Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com>> Sent: Thursday, August 30, 2018 5:48 AM To: Mary Wong Cc: gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Hi Mary,
In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another.
So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly".
Regards,
Justine -----
On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org <mailto:mary.wong@icann.org>> wrote: Hello everyone,
If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved.
If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table.
On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording?
Thanks and cheers Mary, Julie & Ariel
On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" <gnso-rpm-providers-bounces@icann.org <mailto:gnso-rpm-providers-bounces@icann.org> on behalf of mkaranicolas@gmail.com <mailto:mkaranicolas@gmail.com>> wrote:
Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility.
Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com>> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com <mailto:justine.chew@gmail.com>] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> >> Cc: Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org>>; gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org> >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org <mailto:gnso-rpm-providers-bounces@icann.org>] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org> >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS... <https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS...>. >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org <mailto:Gnso-rpm-providers@icann.org> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers <https://mm.icann.org/mailman/listinfo/gnso-rpm-providers> > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org <mailto:Gnso-rpm-providers@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers <https://mm.icann.org/mailman/listinfo/gnso-rpm-providers> _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org <mailto:Gnso-rpm-providers@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers <https://mm.icann.org/mailman/listinfo/gnso-rpm-providers>
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Brian, No one is advocating for guaranteed actual notice. What I am saying is we should not leave interpretation of Rule 2(a) to the Providers as they 'please', and that moving forward it is understood that ICANN Compliance should monitor and enforce Rule 2(a) in the way it was intended to be interpreted - from my perspective, that is that all Providers are required to send Notices of Complaint not only by email, by also by fax and postal-mail where those details are available in WHOIS, and specifically that ADNDRC's practice be brought in line with FORUM and MFSD's. In other words, Phil has very eloquently hit the nail on its head with his last sentence, "For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts." Thank you, Phil! I merely wanted to re-confirm the above in my original intervention. Regards, Justine ----- On Fri, 31 Aug 2018 at 04:23, Martin Pablo Silva Valent < mpsilvavalent@gmail.com> wrote:
It really sounds that Phill got it right for all.
Cheers, Martín
On 30 Aug 2018, at 16:33, Corwin, Philip via Gnso-rpm-providers < gnso-rpm-providers@icann.org> wrote:
My personal view is that, as Mary suggested, “Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved”. We can’t expect providers to send out agents to physically locate domain registrants and ask them F2F if they received notice.
As Brian notes, in some cases registrants deliberately provide false contact information because they know the are registering and using domains in bad faith and don’t want to be identified. In other cases, and this will occur more as new gTLDs age, the original contact data was correct but it hasn’t been updated and now the fax number has changed or been disconnected, the email address is no longer used and checked, and they have moved from the original physical address without leaving forwarding information.
Also, while default rates in URS are high, they are almost as high for UDRP and I don’t recall seeing much if any anecdotal information about registrants who provided correct contact data not getting actual notice in UDRP practice. Another consideration is that, if there is a failure to deliver notice in a timely manner, the URS consequence is less harsh (domain suspension, not extinguishment or transfer) and the opportunities for post-default rehearing are more generous.
For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts.
Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell
*"Luck is the residue of design" -- Branch Rickey*
*From:* Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org <gnso-rpm-providers-bounces@icann.org>] *On Behalf Of *BECKHAM, Brian *Sent:* Thursday, August 30, 2018 7:04 AM *To:* Justine Chew <justine.chew@gmail.com>; Mary Wong < mary.wong@icann.org> *Cc:* gnso-rpm-providers@icann.org *Subject:* [EXTERNAL] Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Thanks Mary, and Justine,
Again, if I may, observing this subteam, I would point out that actual notice in all cases would simply be an impossible standard.
Despite clear obligations on registrants to provide accurate contact details -- which are in turn supposed to be vetted by registrars -- notably including an email address (for an Internet-based domain name registration), not infrequently registrant's (intentionally) use false contact details.
I imagine that these factors significantly underpin the standard of "reasonable means" (or actual notice) in seeking to effect notice.
Brian ------------------------------ *From:* Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org> on behalf of Justine Chew <justine.chew@gmail.com> *Sent:* Thursday, August 30, 2018 5:48 AM *To:* Mary Wong *Cc:* gnso-rpm-providers@icann.org *Subject:* Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Hi Mary,
In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another.
So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly".
Regards,
Justine -----
On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org> wrote:
Hello everyone,
If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved.
If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table.
On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording?
Thanks and cheers Mary, Julie & Ariel
On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" < gnso-rpm-providers-bounces@icann.org on behalf of mkaranicolas@gmail.com> wrote:
Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility.
Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com> >> Cc: Julie Hedlund <julie.hedlund@icann.org>; gnso-rpm-providers@icann.org >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto: gnso-rpm-providers-bounces@icann.org] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS... . >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
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Hello Justine and everyone, Staff recalls that there was some discussion previously (either within this Sub Team or among the broader Working Group) regarding the scope of Rule 2(a). From the face of the text, it seems that Rule 2(a), as written currently, does not mandate that providers must use all three forms of communication (i.e. email, post, fax), in that all it requires is that the providers use “reasonably available means calculated to achieve actual notice”. While a provider that uses all three means will be deemed to have achieved actual notice, the rule seems to contemplate compliance in circumstances where a provider may have used only one or two out of the three means. Given Brian’s, Phil’s and others’ feedback, staff would like to ask if the Sub Team (or a majority thereof) supports retaining what seems to be the current scope, or wishes to recommend that the rule be amended/clarified such that providers are required to utilize all three means of notice. We hope this clarifies the question. Thanks and cheers Mary, Julie & Ariel From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org> on behalf of Justine Chew <justine.chew@gmail.com> Date: Thursday, August 30, 2018 at 22:48 To: "gnso-rpm-providers@icann.org" <gnso-rpm-providers@icann.org> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Brian, No one is advocating for guaranteed actual notice. What I am saying is we should not leave interpretation of Rule 2(a) to the Providers as they 'please', and that moving forward it is understood that ICANN Compliance should monitor and enforce Rule 2(a) in the way it was intended to be interpreted - from my perspective, that is that all Providers are required to send Notices of Complaint not only by email, by also by fax and postal-mail where those details are available in WHOIS, and specifically that ADNDRC's practice be brought in line with FORUM and MFSD's. In other words, Phil has very eloquently hit the nail on its head with his last sentence, "For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts." Thank you, Phil! I merely wanted to re-confirm the above in my original intervention. Regards, Justine ----- On Fri, 31 Aug 2018 at 04:23, Martin Pablo Silva Valent <mpsilvavalent@gmail.com<mailto:mpsilvavalent@gmail.com>> wrote: It really sounds that Phill got it right for all. Cheers, Martín On 30 Aug 2018, at 16:33, Corwin, Philip via Gnso-rpm-providers <gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org>> wrote: My personal view is that, as Mary suggested, “Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved”. We can’t expect providers to send out agents to physically locate domain registrants and ask them F2F if they received notice. As Brian notes, in some cases registrants deliberately provide false contact information because they know the are registering and using domains in bad faith and don’t want to be identified. In other cases, and this will occur more as new gTLDs age, the original contact data was correct but it hasn’t been updated and now the fax number has changed or been disconnected, the email address is no longer used and checked, and they have moved from the original physical address without leaving forwarding information. Also, while default rates in URS are high, they are almost as high for UDRP and I don’t recall seeing much if any anecdotal information about registrants who provided correct contact data not getting actual notice in UDRP practice. Another consideration is that, if there is a failure to deliver notice in a timely manner, the URS consequence is less harsh (domain suspension, not extinguishment or transfer) and the opportunities for post-default rehearing are more generous. For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts. Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] On Behalf Of BECKHAM, Brian Sent: Thursday, August 30, 2018 7:04 AM To: Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Cc: gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> Subject: [EXTERNAL] Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Thanks Mary, and Justine, Again, if I may, observing this subteam, I would point out that actual notice in all cases would simply be an impossible standard. Despite clear obligations on registrants to provide accurate contact details -- which are in turn supposed to be vetted by registrars -- notably including an email address (for an Internet-based domain name registration), not infrequently registrant's (intentionally) use false contact details. I imagine that these factors significantly underpin the standard of "reasonable means" (or actual notice) in seeking to effect notice. Brian ________________________________ From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org>> on behalf of Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Sent: Thursday, August 30, 2018 5:48 AM To: Mary Wong Cc: gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Hi Mary, In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another. So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly". Regards, Justine ----- On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello everyone, If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved. If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table. On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording? Thanks and cheers Mary, Julie & Ariel On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" <gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org> on behalf of mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>> wrote: Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility. Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com<mailto:justine.chew@gmail.com>] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> >> Cc: Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>>; gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org>] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS.... >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. If you have received this e-mail by mistake, please immediately notify the sender and delete this e-mail and all its attachments. Please ensure all e-mail attachments are scanned for viruses prior to opening or using. _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
I would support a recommendation that the rule be amended/clarified such that providers are required to utilize all three means of notice, and in the interest of time, in the event the Sub Team (or a majority thereof) supports the same, I will leave it to Phil /co-chairs on how to best frame this for WG's consideration. ( And I shall no longer strictly consider ADNDRC to have not complied with Rule 2(a) thus far. ) Regards, Justine ----- On Fri, 31 Aug 2018 at 11:07, Mary Wong <mary.wong@icann.org> wrote:
Hello Justine and everyone,
Staff recalls that there was some discussion previously (either within this Sub Team or among the broader Working Group) regarding the scope of Rule 2(a). From the face of the text, it seems that Rule 2(a), as written currently, does *not* mandate that providers must use all three forms of communication (i.e. email, post, fax), in that all it requires is that the providers use “reasonably available means calculated to achieve actual notice”. While a provider that uses all three means will be deemed to have achieved actual notice, the rule seems to contemplate compliance in circumstances where a provider may have used only one or two out of the three means.
Given Brian’s, Phil’s and others’ feedback, staff would like to ask if the Sub Team (or a majority thereof) supports retaining what seems to be the current scope, or wishes to recommend that the rule be amended/clarified such that providers are required to utilize all three means of notice.
We hope this clarifies the question.
Thanks and cheers
Mary, Julie & Ariel
*From: *Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org> on behalf of Justine Chew <justine.chew@gmail.com> *Date: *Thursday, August 30, 2018 at 22:48 *To: *"gnso-rpm-providers@icann.org" <gnso-rpm-providers@icann.org> *Subject: *Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Brian,
No one is advocating for guaranteed actual notice. What I am saying is we should not leave interpretation of Rule 2(a) to the Providers as they 'please', and that moving forward it is understood that ICANN Compliance should monitor and enforce Rule 2(a) in the way it was intended to be interpreted - from my perspective, that is that all Providers are required to send Notices of Complaint not only by email, by also by fax and postal-mail where those details are available in WHOIS, and specifically that ADNDRC's practice be brought in line with FORUM and MFSD's.
In other words, Phil has very eloquently hit the nail on its head with his last sentence, "For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts." Thank you, Phil!
I merely wanted to re-confirm the above in my original intervention.
Regards,
Justine -----
On Fri, 31 Aug 2018 at 04:23, Martin Pablo Silva Valent < mpsilvavalent@gmail.com> wrote:
It really sounds that Phill got it right for all.
Cheers,
Martín
On 30 Aug 2018, at 16:33, Corwin, Philip via Gnso-rpm-providers < gnso-rpm-providers@icann.org> wrote:
My personal view is that, as Mary suggested, “Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved”. We can’t expect providers to send out agents to physically locate domain registrants and ask them F2F if they received notice.
As Brian notes, in some cases registrants deliberately provide false contact information because they know the are registering and using domains in bad faith and don’t want to be identified. In other cases, and this will occur more as new gTLDs age, the original contact data was correct but it hasn’t been updated and now the fax number has changed or been disconnected, the email address is no longer used and checked, and they have moved from the original physical address without leaving forwarding information.
Also, while default rates in URS are high, they are almost as high for UDRP and I don’t recall seeing much if any anecdotal information about registrants who provided correct contact data not getting actual notice in UDRP practice. Another consideration is that, if there is a failure to deliver notice in a timely manner, the URS consequence is less harsh (domain suspension, not extinguishment or transfer) and the opportunities for post-default rehearing are more generous.
For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts.
Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell
*"Luck is the residue of design" -- Branch Rickey*
*From:* Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org <gnso-rpm-providers-bounces@icann.org>] *On Behalf Of *BECKHAM, Brian *Sent:* Thursday, August 30, 2018 7:04 AM *To:* Justine Chew <justine.chew@gmail.com>; Mary Wong < mary.wong@icann.org> *Cc:* gnso-rpm-providers@icann.org *Subject:* [EXTERNAL] Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Thanks Mary, and Justine,
Again, if I may, observing this subteam, I would point out that actual notice in all cases would simply be an impossible standard.
Despite clear obligations on registrants to provide accurate contact details -- which are in turn supposed to be vetted by registrars -- notably including an email address (for an Internet-based domain name registration), not infrequently registrant's (intentionally) use false contact details.
I imagine that these factors significantly underpin the standard of "reasonable means" (or actual notice) in seeking to effect notice.
Brian ------------------------------
*From:* Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org> on behalf of Justine Chew <justine.chew@gmail.com> *Sent:* Thursday, August 30, 2018 5:48 AM *To:* Mary Wong *Cc:* gnso-rpm-providers@icann.org *Subject:* Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Hi Mary,
In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another.
So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly".
Regards,
Justine -----
On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org> wrote:
Hello everyone,
If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved.
If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table.
On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording?
Thanks and cheers Mary, Julie & Ariel
On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" < gnso-rpm-providers-bounces@icann.org on behalf of mkaranicolas@gmail.com> wrote:
Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility.
Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com> >> Cc: Julie Hedlund <julie.hedlund@icann.org>; gnso-rpm-providers@icann.org >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto: gnso-rpm-providers-bounces@icann.org] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS... . >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
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Hi, I think that staff’s interpretation of 2(a) is incorrect based on the plain language of the rules. It is extremely misleading to keep quoting the phrasing “reasonably available means” without its proper context. *The very next line* defines the scope of that responsibility as either being actual notice – some sort of verification that the Respondent has seen the complaint which, as others have pointed out, is an extremely difficult standard along the lines of personal service – OR by using the three means of communication listed: "sending the Notice of Complaint to all email, postal- mail and facsimile addresses shown in the domain name's registration data in the Whois database for the registered domain-name holder, the technical contact, and the administrative contact, as well as to any email 2 addresses for the Respondent provided by the Complainant". This does not mean that the rule contemplates compliance in instances where a provider only uses only one of the means of communication - as ADNDRC has been doing - unless they can demonstrate that that means of communication resulted in actual notice (i.e. personal service). So, unless ADNDRC can demonstrate that all of the people they've emailed received actual notice (which they obviously can't) - *they are in breach of the rules*. I don't mean to belabour this issue - since I think we're ending up at a similar place either way, and I would support either Phil's language or an amendment clarifying the existing requirement to use all three means of communications in the absence of actual notice. But I feel the need to point this out since these interventions are not helpful if they push the discussion in misleading directions. Best, Michael On Aug 31, 2018, at 12:07 AM, Mary Wong <mary.wong@icann.org> wrote: Hello Justine and everyone, Staff recalls that there was some discussion previously (either within this Sub Team or among the broader Working Group) regarding the scope of Rule 2(a). From the face of the text, it seems that Rule 2(a), as written currently, does *not* mandate that providers must use all three forms of communication (i.e. email, post, fax), in that all it requires is that the providers use “reasonably available means calculated to achieve actual notice”. While a provider that uses all three means will be deemed to have achieved actual notice, the rule seems to contemplate compliance in circumstances where a provider may have used only one or two out of the three means. Given Brian’s, Phil’s and others’ feedback, staff would like to ask if the Sub Team (or a majority thereof) supports retaining what seems to be the current scope, or wishes to recommend that the rule be amended/clarified such that providers are required to utilize all three means of notice. We hope this clarifies the question. Thanks and cheers Mary, Julie & Ariel *From: *Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org> on behalf of Justine Chew <justine.chew@gmail.com> *Date: *Thursday, August 30, 2018 at 22:48 *To: *"gnso-rpm-providers@icann.org" <gnso-rpm-providers@icann.org> *Subject: *Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Brian, No one is advocating for guaranteed actual notice. What I am saying is we should not leave interpretation of Rule 2(a) to the Providers as they 'please', and that moving forward it is understood that ICANN Compliance should monitor and enforce Rule 2(a) in the way it was intended to be interpreted - from my perspective, that is that all Providers are required to send Notices of Complaint not only by email, by also by fax and postal-mail where those details are available in WHOIS, and specifically that ADNDRC's practice be brought in line with FORUM and MFSD's. In other words, Phil has very eloquently hit the nail on its head with his last sentence, "For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts." Thank you, Phil! I merely wanted to re-confirm the above in my original intervention. Regards, Justine ----- On Fri, 31 Aug 2018 at 04:23, Martin Pablo Silva Valent < mpsilvavalent@gmail.com> wrote: It really sounds that Phill got it right for all. Cheers, Martín On 30 Aug 2018, at 16:33, Corwin, Philip via Gnso-rpm-providers < gnso-rpm-providers@icann.org> wrote: My personal view is that, as Mary suggested, “Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved”. We can’t expect providers to send out agents to physically locate domain registrants and ask them F2F if they received notice. As Brian notes, in some cases registrants deliberately provide false contact information because they know the are registering and using domains in bad faith and don’t want to be identified. In other cases, and this will occur more as new gTLDs age, the original contact data was correct but it hasn’t been updated and now the fax number has changed or been disconnected, the email address is no longer used and checked, and they have moved from the original physical address without leaving forwarding information. Also, while default rates in URS are high, they are almost as high for UDRP and I don’t recall seeing much if any anecdotal information about registrants who provided correct contact data not getting actual notice in UDRP practice. Another consideration is that, if there is a failure to deliver notice in a timely manner, the URS consequence is less harsh (domain suspension, not extinguishment or transfer) and the opportunities for post-default rehearing are more generous. For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts. Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell *"Luck is the residue of design" -- Branch Rickey* *From:* Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org <gnso-rpm-providers-bounces@icann.org>] *On Behalf Of *BECKHAM, Brian *Sent:* Thursday, August 30, 2018 7:04 AM *To:* Justine Chew <justine.chew@gmail.com>; Mary Wong <mary.wong@icann.org> *Cc:* gnso-rpm-providers@icann.org *Subject:* [EXTERNAL] Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Thanks Mary, and Justine, Again, if I may, observing this subteam, I would point out that actual notice in all cases would simply be an impossible standard. Despite clear obligations on registrants to provide accurate contact details -- which are in turn supposed to be vetted by registrars -- notably including an email address (for an Internet-based domain name registration), not infrequently registrant's (intentionally) use false contact details. I imagine that these factors significantly underpin the standard of "reasonable means" (or actual notice) in seeking to effect notice. Brian ------------------------------ *From:* Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org> on behalf of Justine Chew <justine.chew@gmail.com> *Sent:* Thursday, August 30, 2018 5:48 AM *To:* Mary Wong *Cc:* gnso-rpm-providers@icann.org *Subject:* Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Hi Mary, In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another. So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly". Regards, Justine ----- On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org> wrote: Hello everyone, If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved. If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table. On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording? Thanks and cheers Mary, Julie & Ariel On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" < gnso-rpm-providers-bounces@icann.org on behalf of mkaranicolas@gmail.com> wrote: Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility. Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com> >> Cc: Julie Hedlund <julie.hedlund@icann.org>; gnso-rpm-providers@icann.org >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS... . >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-providers World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. If you have received this e-mail by mistake, please immediately notify the sender and delete this e-mail and all its attachments. 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I tend to agree with Michael here, and in any case, I think Phill’s comments really finds a middle ground and a sensible proposal. Best, Martín
On 31 Aug 2018, at 13:16, Michael Karanicolas <mkaranicolas@gmail.com> wrote:
Hi,
I think that staff’s interpretation of 2(a) is incorrect based on the plain language of the rules. It is extremely misleading to keep quoting the phrasing “reasonably available means” without its proper context. The very next line defines the scope of that responsibility as either being actual notice – some sort of verification that the Respondent has seen the complaint which, as others have pointed out, is an extremely difficult standard along the lines of personal service – OR by using the three means of communication listed: "sending the Notice of Complaint to all email, postal- mail and facsimile addresses shown in the domain name's registration data in the Whois database for the registered domain-name holder, the technical contact, and the administrative contact, as well as to any email 2 addresses for the Respondent provided by the Complainant". This does not mean that the rule contemplates compliance in instances where a provider only uses only one of the means of communication - as ADNDRC has been doing - unless they can demonstrate that that means of communication resulted in actual notice (i.e. personal service). So, unless ADNDRC can demonstrate that all of the people they've emailed received actual notice (which they obviously can't) - they are in breach of the rules.
I don't mean to belabour this issue - since I think we're ending up at a similar place either way, and I would support either Phil's language or an amendment clarifying the existing requirement to use all three means of communications in the absence of actual notice. But I feel the need to point this out since these interventions are not helpful if they push the discussion in misleading directions.
Best,
Michael
On Aug 31, 2018, at 12:07 AM, Mary Wong <mary.wong@icann.org <mailto:mary.wong@icann.org>> wrote:
Hello Justine and everyone,
Staff recalls that there was some discussion previously (either within this Sub Team or among the broader Working Group) regarding the scope of Rule 2(a). From the face of the text, it seems that Rule 2(a), as written currently, does not mandate that providers must use all three forms of communication (i.e. email, post, fax), in that all it requires is that the providers use “reasonably available means calculated to achieve actual notice”. While a provider that uses all three means will be deemed to have achieved actual notice, the rule seems to contemplate compliance in circumstances where a provider may have used only one or two out of the three means.
Given Brian’s, Phil’s and others’ feedback, staff would like to ask if the Sub Team (or a majority thereof) supports retaining what seems to be the current scope, or wishes to recommend that the rule be amended/clarified such that providers are required to utilize all three means of notice.
We hope this clarifies the question.
Thanks and cheers
Mary, Julie & Ariel
From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org <mailto:gnso-rpm-providers-bounces@icann.org>> on behalf of Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com>> Date: Thursday, August 30, 2018 at 22:48 To: "gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org>" <gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org>> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Brian,
No one is advocating for guaranteed actual notice. What I am saying is we should not leave interpretation of Rule 2(a) to the Providers as they 'please', and that moving forward it is understood that ICANN Compliance should monitor and enforce Rule 2(a) in the way it was intended to be interpreted - from my perspective, that is that all Providers are required to send Notices of Complaint not only by email, by also by fax and postal-mail where those details are available in WHOIS, and specifically that ADNDRC's practice be brought in line with FORUM and MFSD's.
In other words, Phil has very eloquently hit the nail on its head with his last sentence, "For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts." Thank you, Phil!
I merely wanted to re-confirm the above in my original intervention. <>
Regards,
Justine -----
On Fri, 31 Aug 2018 at 04:23, Martin Pablo Silva Valent <mpsilvavalent@gmail.com <mailto:mpsilvavalent@gmail.com>> wrote:
It really sounds that Phill got it right for all.
Cheers,
Martín
On 30 Aug 2018, at 16:33, Corwin, Philip via Gnso-rpm-providers <gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org>> wrote:
My personal view is that, as Mary suggested, “Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved”. We can’t expect providers to send out agents to physically locate domain registrants and ask them F2F if they received notice. <>
As Brian notes, in some cases registrants deliberately provide false contact information because they know the are registering and using domains in bad faith and don’t want to be identified. In other cases, and this will occur more as new gTLDs age, the original contact data was correct but it hasn’t been updated and now the fax number has changed or been disconnected, the email address is no longer used and checked, and they have moved from the original physical address without leaving forwarding information.
Also, while default rates in URS are high, they are almost as high for UDRP and I don’t recall seeing much if any anecdotal information about registrants who provided correct contact data not getting actual notice in UDRP practice. Another consideration is that, if there is a failure to deliver notice in a timely manner, the URS consequence is less harsh (domain suspension, not extinguishment or transfer) and the opportunities for post-default rehearing are more generous.
For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts.
Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell
"Luck is the residue of design" -- Branch Rickey
From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org <mailto:gnso-rpm-providers-bounces@icann.org>] On Behalf Of BECKHAM, Brian Sent: Thursday, August 30, 2018 7:04 AM To: Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com>>; Mary Wong <mary.wong@icann.org <mailto:mary.wong@icann.org>> Cc: gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org> Subject: [EXTERNAL] Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Thanks Mary, and Justine,
Again, if I may, observing this subteam, I would point out that actual notice in all cases would simply be an impossible standard.
Despite clear obligations on registrants to provide accurate contact details -- which are in turn supposed to be vetted by registrars -- notably including an email address (for an Internet-based domain name registration), not infrequently registrant's (intentionally) use false contact details.
I imagine that these factors significantly underpin the standard of "reasonable means" (or actual notice) in seeking to effect notice.
Brian
From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org <mailto:gnso-rpm-providers-bounces@icann.org>> on behalf of Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com>> Sent: Thursday, August 30, 2018 5:48 AM To: Mary Wong Cc: gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018
Hi Mary,
In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another.
So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly".
Regards,
Justine -----
On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org <mailto:mary.wong@icann.org>> wrote:
Hello everyone,
If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved.
If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table.
On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording?
Thanks and cheers Mary, Julie & Ariel
On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" <gnso-rpm-providers-bounces@icann.org <mailto:gnso-rpm-providers-bounces@icann.org> on behalf of mkaranicolas@gmail.com <mailto:mkaranicolas@gmail.com>> wrote:
Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility.
Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com>> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com <mailto:justine.chew@gmail.com>] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> >> Cc: Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org>>; gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org> >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org <mailto:gnso-rpm-providers-bounces@icann.org>] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org <mailto:gnso-rpm-providers@icann.org> >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS... <https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS...>. >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org <mailto:Gnso-rpm-providers@icann.org> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers <https://mm.icann.org/mailman/listinfo/gnso-rpm-providers> > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org <mailto:Gnso-rpm-providers@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers <https://mm.icann.org/mailman/listinfo/gnso-rpm-providers> _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org <mailto:Gnso-rpm-providers@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers <https://mm.icann.org/mailman/listinfo/gnso-rpm-providers>
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Hello Michael, Martin and everyone – please be assured that staff is not attempting to misdirect anyone, and we are sorry if we appear to be belaboring the point. What we are trying to do is ensure that the Sub Team is clear as to whether it is merely clarifying/tightening what is already an existing requirement, versus adding to an existing one. The underlying question seems to us to be whether the current Procedure and Rules require that the Notice of Complaint (in contrast to a copy of the actual Complaint) be sent using all three communication methods (i.e. post, fax and email): * To the extent it does, then what the Sub Team is recommending (“ADNDRC should change its operational rules to comply with URS Procedure para 4.2, requiring that Notice of Complaint be transmitted by the Respondent, with translation in the predominant language of the Respondent, via email, fax, and postal mail”) does not change the scope of the existing requirement – although it may be necessary in that case to also re-visit FORUM’s practice, which staff understands to be that the Notice of Complaint is sent by fax and mail, while the actual Complaint is sent via email (along with an electronic copy of the Notice and a link to FORUM’s online portal). * If, however, the current requirement for sending the Notice of Complaint is simply a hard copy sent via fax or postal mail, then recommending that the Notice be sent by all three methods will likely amount to a substantive change in thes cope of Section 4.2. We note that Section 4.2(a) of the Procedure states that, within 24 hours of receiving the lock notice from the relevant registry, a provider must send “a hard copy of the Notice of Complaint to the addresses listed in the Whois contact information, and [provide] an electronic copy of the Complaint” (emphasis added). It then seems that Rule 2(a) kicks in to explain just the second part of Section 4.2, as to electronic transmission of the actual complaint; viz. “When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice”. Staff are certainly not URS experts so we were merely trying to draw the Sub Team’s attention to the distinction (if any) between the requirements for sending a Notice of Complaint and the actual Complaint, and clarify what was intended by the current recommendation as well as whether it is a problem both for FORUM and ADNDRC. We are sorry if we created any confusion as a result, and of course will be happy to be corrected if we got it wrong. Thank you. Best regards, Mary, Julie & Ariel From: Martin Pablo Silva Valent <mpsilvavalent@gmail.com> Date: Friday, August 31, 2018 at 13:25 To: Michael Karanicolas <mkaranicolas@gmail.com> Cc: Mary Wong <mary.wong@icann.org>, "gnso-rpm-providers@icann.org" <gnso-rpm-providers@icann.org> Subject: [Ext] Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 I tend to agree with Michael here, and in any case, I think Phill’s comments really finds a middle ground and a sensible proposal. Best, Martín On 31 Aug 2018, at 13:16, Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>> wrote: Hi, I think that staff’s interpretation of 2(a) is incorrect based on the plain language of the rules. It is extremely misleading to keep quoting the phrasing “reasonably available means” without its proper context. The very next line defines the scope of that responsibility as either being actual notice – some sort of verification that the Respondent has seen the complaint which, as others have pointed out, is an extremely difficult standard along the lines of personal service – OR by using the three means of communication listed: "sending the Notice of Complaint to all email, postal- mail and facsimile addresses shown in the domain name's registration data in the Whois database for the registered domain-name holder, the technical contact, and the administrative contact, as well as to any email 2 addresses for the Respondent provided by the Complainant". This does not mean that the rule contemplates compliance in instances where a provider only uses only one of the means of communication - as ADNDRC has been doing - unless they can demonstrate that that means of communication resulted in actual notice (i.e. personal service). So, unless ADNDRC can demonstrate that all of the people they've emailed received actual notice (which they obviously can't) - they are in breach of the rules. I don't mean to belabour this issue - since I think we're ending up at a similar place either way, and I would support either Phil's language or an amendment clarifying the existing requirement to use all three means of communications in the absence of actual notice. But I feel the need to point this out since these interventions are not helpful if they push the discussion in misleading directions. Best, Michael On Aug 31, 2018, at 12:07 AM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello Justine and everyone, Staff recalls that there was some discussion previously (either within this Sub Team or among the broader Working Group) regarding the scope of Rule 2(a). From the face of the text, it seems that Rule 2(a), as written currently, does not mandate that providers must use all three forms of communication (i.e. email, post, fax), in that all it requires is that the providers use “reasonably available means calculated to achieve actual notice”. While a provider that uses all three means will be deemed to have achieved actual notice, the rule seems to contemplate compliance in circumstances where a provider may have used only one or two out of the three means. Given Brian’s, Phil’s and others’ feedback, staff would like to ask if the Sub Team (or a majority thereof) supports retaining what seems to be the current scope, or wishes to recommend that the rule be amended/clarified such that providers are required to utilize all three means of notice. We hope this clarifies the question. Thanks and cheers Mary, Julie & Ariel From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org>> on behalf of Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Date: Thursday, August 30, 2018 at 22:48 To: "gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org>" <gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org>> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Brian, No one is advocating for guaranteed actual notice. What I am saying is we should not leave interpretation of Rule 2(a) to the Providers as they 'please', and that moving forward it is understood that ICANN Compliance should monitor and enforce Rule 2(a) in the way it was intended to be interpreted - from my perspective, that is that all Providers are required to send Notices of Complaint not only by email, by also by fax and postal-mail where those details are available in WHOIS, and specifically that ADNDRC's practice be brought in line with FORUM and MFSD's. In other words, Phil has very eloquently hit the nail on its head with his last sentence, "For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts." Thank you, Phil! I merely wanted to re-confirm the above in my original intervention. Regards, Justine ----- On Fri, 31 Aug 2018 at 04:23, Martin Pablo Silva Valent <mpsilvavalent@gmail.com<mailto:mpsilvavalent@gmail.com>> wrote: It really sounds that Phill got it right for all. Cheers, Martín On 30 Aug 2018, at 16:33, Corwin, Philip via Gnso-rpm-providers <gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org>> wrote: My personal view is that, as Mary suggested, “Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved”. We can’t expect providers to send out agents to physically locate domain registrants and ask them F2F if they received notice. As Brian notes, in some cases registrants deliberately provide false contact information because they know the are registering and using domains in bad faith and don’t want to be identified. In other cases, and this will occur more as new gTLDs age, the original contact data was correct but it hasn’t been updated and now the fax number has changed or been disconnected, the email address is no longer used and checked, and they have moved from the original physical address without leaving forwarding information. Also, while default rates in URS are high, they are almost as high for UDRP and I don’t recall seeing much if any anecdotal information about registrants who provided correct contact data not getting actual notice in UDRP practice. Another consideration is that, if there is a failure to deliver notice in a timely manner, the URS consequence is less harsh (domain suspension, not extinguishment or transfer) and the opportunities for post-default rehearing are more generous. For all those reasons, I think we should enforce the existing requirements for three methods of providing notice, but not mandate actual notice as that can never be guaranteed even with best efforts. Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org] On Behalf Of BECKHAM, Brian Sent: Thursday, August 30, 2018 7:04 AM To: Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Cc: gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> Subject: [EXTERNAL] Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Thanks Mary, and Justine, Again, if I may, observing this subteam, I would point out that actual notice in all cases would simply be an impossible standard. Despite clear obligations on registrants to provide accurate contact details -- which are in turn supposed to be vetted by registrars -- notably including an email address (for an Internet-based domain name registration), not infrequently registrant's (intentionally) use false contact details. I imagine that these factors significantly underpin the standard of "reasonable means" (or actual notice) in seeking to effect notice. Brian ________________________________ From: Gnso-rpm-providers <gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org>> on behalf of Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Sent: Thursday, August 30, 2018 5:48 AM To: Mary Wong Cc: gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Hi Mary, In reply to your question, my answer is "I would have thought so" but given the responses herein, I read Susan's proposed wording to focus on monitoring and ensuring compliance which is good, but the point I queried has to do with interpretation of Rule 2(a), as in to what needs to be complied with. And as we can see, this differs from person to person, even with the Providers -- with Forum and MSFD seeming to have read it one way and ADNDRC another. So, question is, if at all, what does this subteam want to do about having ICANN Compliance (and everyone else) interpret Rule 2(a) "correctly". Regards, Justine ----- On Thu, 30 Aug 2018 at 11:31, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello everyone, If staff may be permitted to provide input here, is the fundamental question whether Rule 2(a) should mandate actual notice, versus what it now says, which is that all the providers are obliged to do is use "reasonably available means calculated to achieve actual notice"? At the moment, this is deemed to be fulfilled if they indeed send postal and electronic and fax notices - so the related question is whether or not Rule 2(a) should really just require all three forms of notice, so that "actual notice" can be deemed to have been achieved. If this is a specific recommendation the Providers Sub Team wishes to make, staff can certainly add it to the Super Consolidated Table. On the question of ADNDRC compliance with Rule 2(a) - wouldn't the need to investigate this now be incorporated in Susan's proposed wording? Thanks and cheers Mary, Julie & Ariel On 8/29/18, 16:46, "Gnso-rpm-providers on behalf of Michael Karanicolas" <gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org> on behalf of mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>> wrote: Yes - I think the wording is problematic, for precisely that reason. It includes a particular procedure for notification, but then suggests that this may be an alternative to "actual notice"... how on earth is ADNDRC supposed to affirm that they provided actual notice in the URS timeframe? Especially given the default rates (which don't necessarily mean that the all these respondents HAVEN'T been getting notice... but certainly don't support an implication that they have). I think it's illogical to interpret the wording as meaning that postal notice is optional - but the phrasing of it sort of provides an outlet if providers aren't properly fulfilling their responsibility. Fundamentally though - I think we are in agreement that ADNDRC should be doing this, right? On Wed, Aug 29, 2018 at 3:00 PM Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> wrote: > > ...2(a) ...Achieving actual notice, or employing the following measures to do so, ..... > (i) sending the Notice of Complaint to all email, postal-mail and facsimile addresses shown in the domain name's registration data in the Whois database .... > > ADNDRC's response didn't give me a right comfort level that actual notice was achieved 100% of the time, and as you say, 2(a) is to ensure that the Provider has taken all reasonable steps to achieve actual notice, which should include postal-mail and fax delivery of the Notice of Complaint. > > So, now I wonder if the language in 2(a) needs revisiting. But I'll leave that thought to percolate. > > Justine > ----- > > > On Thu, 30 Aug 2018 at 01:39, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: >> >> Well, I don’t think I was the only one, but I certainly do think that it has not been established beyond doubt that ADNDRC are actually in breach – if they have managed in all their cases to effect actual notice by the means they have utilised, then they have met their obligations under 2(a): >> >> “2(a) When forwarding a Complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility…” >> >> However, given that some domain registrants will not submit a response, the various means set out at 2(a) are there to ensure that the Provider has taken all reasonable steps to ensure they are aware. And based on the answers we got from ADNDRC it does not seem as though they are set up to utilise the other means of service. >> >> >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Justine Chew [mailto:justine.chew@gmail.com<mailto:justine.chew@gmail.com>] >> Sent: 29 August 2018 18:27 >> To: Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> >> Cc: Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>>; gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> >> Subject: Re: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> That works for me, Susan, thanks. >> >> Just digressing a little. You triggered a memory .... I recall someone in the RPM WG (but can't recall who now) who interpreted the URS Rule 2(a) loosely such that if a Provider thought email and only email is a reasonable means calculated to achieve actual notice to Respondents then that would be allowable. I don't think there is any merit to this interpretation. I believe URS Rule 2(a) is quite clear on the 2-fold obligation on the part of Providers, so I don't think there is a need to tighten the language in URS Rule 2(a). >> >> >> Regards, >> >> Justine >> ----- >> >> >> >> >> >> On Thu, 30 Aug 2018 at 01:09, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: >> >> Regarding my action item, how about: >> >> >> >> ICANN Compliance >> >> >> >> ICANN Compliance should be responsible for monitoring URS providers to ensure that they operate in accordance with the administrative requirements of the URS and URS Rules, including, by way of example, requirements as to method, language and timing of communications and the publication of required information . >> >> >> >> In view of the expedited nature of URS proceedings, ICANN Compliance should work with the URS Providers and relevant registries to rapidly address and resolve any incidences of registry non-compliance with obligations relating to registry locking/unlocking and suspension. >> >> >> >> Susan Payne >> Head of Legal Policy | Valideus Ltd >> >> E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> >> D: +44 20 7421 8255 >> T: +44 20 7421 8299 >> M: +44 7971 661175 >> >> >> >> From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces@icann.org<mailto:gnso-rpm-providers-bounces@icann.org>] On Behalf Of Julie Hedlund >> Sent: 29 August 2018 14:42 >> To: gnso-rpm-providers@icann.org<mailto:gnso-rpm-providers@icann.org> >> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 >> >> >> >> Dear All, >> >> >> >> Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS.... >> >> >> >> See also the attached referenced documents. >> >> >> >> Best Regards, >> >> Julie >> >> Julie Hedlund, Policy Director >> >> >> >> == >> >> >> >> ACTION ITEMS: >> >> >> >> Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. >> >> >> >> NOTES: >> >> >> >> Operational Fixes: >> >> >> >> A. THE COMPLAINT >> >> >> >> 4. Administrative review >> >> >> >> A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. >> >> >> >> -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? >> >> -- Accept the suggested revised language. >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 >> >> >> >> Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. >> >> -and- >> >> GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS >> >> [rules for the timely response by Registries to requests for non-public information from Providers] >> >> >> >> -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) >> >> >> >> ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> 2. Effect on Registry Operator - Notice requirements for Registry Operators >> >> >> >> ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date >> >> -and- >> >> GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements >> >> >> >> -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> F. REMEDIES >> >> >> >> 3. Review of Implementation >> >> >> >> There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process >> >> >> >> -- Accept the suggested revised language >> >> ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. >> >> >> >> J. LANGUAGE ISSUES >> >> >> >> 1. Language issues, including current requirements for complaint, notice of complaint, response, determination >> >> >> >> ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> Policy Proposals: >> >> >> >> A. THE COMPLAINT >> >> >> >> 6. Amending the Complaint in light of GDPR/Temp Spec >> >> >> >> URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. >> >> -and- >> >> URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. >> >> -and- >> >> Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. >> >> >> >> -- Accept the suggested revised language. >> >> -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. >> >> >> >> B. NOTICE >> >> >> >> 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) >> >> >> >> For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. >> >> >> >> -- Accept the suggested revised language with additional text in brackets. >> >> >> >> E. DEFENSES >> >> >> >> 1. Scope of Defenses >> >> >> >> 2. Unreasonable delay in filing a complaint (i.e. laches) >> >> >> >> All Providers should provide similar types and forms of guidance to their examiners. >> >> -and- >> >> Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> F. REMEDIES >> >> >> >> 2. Duration of Suspension Period >> >> >> >> 3. Review of Implementation >> >> >> >> URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. >> >> >> >> -- Do we need to mention ICANN Compliance role at all? Reword accordingly. >> >> -- Accept the suggested revised language. >> >> >> >> K. ABUSE OF PROCESS >> >> >> >> 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” >> >> >> >> Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. >> >> >> >> -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. >> >> -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. >> >> -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" >> >> -- Accept the suggested approach. >> >> >> >> Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." >> >> >> >> -- Not sure why this should be a concern since the information about the country should be available. >> >> -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. >> >> -- Change from a recommendation to an action. >> >> >> >> L. EDUCATION & TRAINING >> >> 1. Responsibility for education and training of complainants, registrants, registry operators and registrars >> >> >> >> ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) >> >> -and- >> >> URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. >> >> >> >> -- Accept the suggested revised language. >> >> >> >> M. URS PROVIDERS >> >> 1. Evaluation of URS providers and their respective processes (including training of panelists) >> >> >> >> Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. >> >> >> >> -- I don't think we identified that there was a problem. >> >> -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. >> >> -- Accept the suggested revised language with strikeouts and additional text in brackets. >> >> _______________________________________________ >> Gnso-rpm-providers mailing list >> Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers > > _______________________________________________ > Gnso-rpm-providers mailing list > Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers _______________________________________________ Gnso-rpm-providers mailing list Gnso-rpm-providers@icann.org<mailto:Gnso-rpm-providers@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. 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participants (9)
-
BECKHAM, Brian -
Corwin, Philip -
Cyntia King -
Julie Hedlund -
Justine Chew -
Martin Pablo Silva Valent -
Mary Wong -
Michael Karanicolas -
Susan Payne