March 2019 - Gnso-rpm-sunrise

Proposed Agenda - RPM PDP WG Sunrise Sub Team - 03 April 2019
by Julie Hedlund March 28, 2019

March 28, 2019

Dear All, Please see the agenda below and the attached summary table for the meeting on Wednesday, 03 April at 18:00 UTC. Note for US participants – the time of 18:00 UTC is one hour later than previously in US time zones due to the change to Daylight Savings Time – so, 11:00 PDT and 14:00 EDT. Draft Agenda: 1. Review agenda/updates to Statements of Interest (SOIs) 2. Development of Preliminary Recommendations – Complete discussion of question 3, begin discussion of remaining questions as time permits -- 4, 5(a) and (b), 6, 8, 9, 10, 11, 12, and Preamble question (questions 1, 7, and 2 have been addressed) 3. AOB NOTE: If any Sub Team member knows they will miss the 03 April meeting could they please consider emailing any suggested preliminary recommendations to the Sub Team list. Thank you very much. Best, Julie Julie Hedlund, Policy Director

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Ten Individual Proposals Submitted - Sunrise
by Ariel Liang March 28, 2019

March 28, 2019

Dear Sunrise Sub Team members, This is to let you know that by the deadline of COB Wednesday, 27 March, a total of ten (10) individual proposals pertaining to Sunrise were submitted. Please note that two out of these ten individual proposals (#1, #11) are also concerned with Trademark Claims. You may download all individual proposals here https://community.icann.org/x/R6EWBg (top half of the table on the wiki page includes the Sunrise related individual proposals) Per Section 7 of the Co-Chairs’ Proposed Process, the next steps for the Sunrise Sub Team are: * Sub Team conducts the initial vetting of individual proposals, determines the level of support within the Sub Team (e.g., based on data collected), and recommends to the full WG whether to include each of the individual proposals in the Initial Report for the solicitation of public comment, along with an accompanying rationale; * The Sub Team’s Summary Tables and reports to the WG should note which individual proposals constitute Sub Team recommendations for inclusion in the Initial Report (using the same standard of wide support as for Sub Team proposals, above) and which do not. Best Regards, Mary, Julie, Berry, Ariel From: Ariel Liang <ariel.liang(a)icann.org> Date: Friday, March 29, 2019 at 12:23 AM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: Re: Closing Tomorrow: Individual Proposal for Sunrise & Trademark Claims Dear RPM Working Group members, This is to let you know that by the deadline of COB Wednesday, 27 March, a total of 13 individual proposals pertaining to Sunrise and Trademark Claims have been submitted via the SurveyMonkey form. The form is now closed. You can download all individual proposals (including a consolidated document) from the wiki page here: https://community.icann.org/x/R6EWBg Staff will forward the individual proposals to the Sunrise and Trademark Claims sub teams, who are tasked to conduct the initial vetting of the individual proposals. Thank you to the Working Group members who made contributions/input via the proposal submission. Best Regards, Mary, Julie, Berry, Ariel From: Ariel Liang <ariel.liang(a)icann.org> Date: Tuesday, March 26, 2019 at 11:49 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: Closing Tomorrow: Individual Proposal for Sunrise & Trademark Claims Dear RPM Working Group members, Please be so kind to note that George Kirikos submitted six (6) individual proposals pertaining to Sunrise and Trademark Claims. You may access the proposals here: https://community.icann.org/x/R6EWBg Furthermore, staff would like to take the opportunity and remind you of the individual proposal submission deadline, which is EOB tomorrow (Wednesday, 27 March 2019). Please submit your proposal via the online form here: https://www.surveymonkey.com/r/SunriseClaims. If you have technical difficulty accessing the online form, please contact ariel.liang(a)icann.org<mailto:ariel.liang@icann.org> for assistance. Detailed requirements for individual proposals are included below. Best Regards, Mary, Julie, Berry, Ariel == As noted in Section 7 of the Co-Chairs’ Proposed Process for Sunrise and Trademark Claims Sub Teams: * Individual WG members may submit their additional proposals, on behalf of one or more members, (including any specific proposals that were raised during earlier discussions, e.g., during the WG’s previous (January to July 2017) discussions of the TMCH when proposals relating to its structure and operations were solicited) to the relevant Sub Teams: * The submission period will open on 31 January 2019 and remain open till 27 March 2019; * WG members do not necessarily need to rely on Sub Team proposals to develop individual proposals (this is why the submission period for individual proposals opens before the Sub Teams complete their discussion of and make decisions on Sub Team proposals); * Each individual proposal shall be succinct and specific, and may be accompanied by a justification statement of no more than 500 words. It should state the operational or policy rationale for the proposal, and should also cite any evidence in support of it. Such evidence may be information developed by the relevant Sub Team, or documented in other sources; * Sub Teams conduct the initial vetting of individual proposals, determine the level of support within the Sub Teams (e.g., based on data collected), and recommend to the full 3 WG whether to include each of the individual proposals in the Initial Report for the solicitation of public comment, along with an accompanying rationale; * The Sub Teams’ Summary Tables and reports to the WG should note which individual proposals constitute Sub Team recommendations for inclusion in the Initial Report (using the same standard of wide support as for Sub Team proposals, above) and which do not.

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Recordings, attendance & AC chat / Review of all Review of all Rights Protection Mechanisms (RPMs) Sunrise Data Review Sub Team call held Wednesday, 27 March 2019 at 18:00 UTC.
by Terri Agnew March 28, 2019

March 28, 2019

Dear all, Please find the attendance and AC Chat attached to this email, and the MP3 & AC recording below for the Review of all Review of all Rights Protection Mechanisms (RPMs) Sunrise Data Review Sub Team call held Wednesday, 27 March 2019 at 18:00 UTC. Attendance and recording of the call is also posted on agenda wiki page: https://community.icann.org/x/qw5IBg MP3: https://audio.icann.org/gnso/gnso-rpm-review-sunrise-registrations-27mar19-… AC Recording: https://participate.icann.org/p8kqtbg229w/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar/2019 ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-sunrise/ Main wiki page for the working group: https://community.icann.org/x/KhGsAw Thank you. Kind Regards, Michelle

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Actions & Notes: RPM Sunrise Sub Team Meeting 27 March 1800 UTC
by Julie Hedlund March 27, 2019

March 27, 2019

Dear All, Please see below the action items and notes captured by staff from the RPM Sunrise Sub Team meeting held on 27 March 2019 (18:00-19:00 UTC). Staff have posted to the wiki space the action items and notes. Please note that these are high-level notes and are not meant as a substitute for the recording, chat room, or transcript. The recording, AC chat, transcript and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2019-03-27+Sub+Team+for+Su…. Best Regards, Julie Julie Hedlund, Policy Director == NOTES & ACTION ITEMS Actions: Staff will endeavor to capture the draft text of preliminary recommendations and incorporate it into a revised summary table. Notes: 1. Updates to Statements of Interest (SOIs): No updates provided. 2. Development of Preliminary Recommendations (Questions 2 and 3, and 4 if there is time) QUESTION 2 (Threshold question: Is Registry pricing within the scope of the RPM WG or ICANN's review?) (a) Does Registry Sunrise or Premium Name pricing practices unfairly limit the ability of trademark owners to participate during Sunrise? (b) If so, how extensive is this problem? Tentative Preliminary Recommendation: 1) [Griffin Barnett] Registry Operator pricing should not discriminate against brand owners or otherwise have the effect of circumventing the reasonable use of the Sunrise mechanism. 2) [Susan Payne] Consider a PIC – a registry operator should not operate its TLD in such a way as to circumvent the RPMs. This would allow for an aggrieved brand owner to enforce via the PIC DRP and not be reliant on ICANN Compliance. Discussion: Griffin Barnett: In writing: Registry Operator pricing should not discriminate against brand owners or otherwise have the effect of circumventing the reasonable use of the Sunrise mechanism Susan Payne: Julie - building on Griffin's suggestion, mine was that we consider a PIC - registry operator should not operate its TLD in such a way as to circumvent the RPMs. This would allow for an aggrieved brand owner to enforce via the PIC DRP and not be reliant on ICANN Compliance -- Pricing shouldn't circumvent the RPMs -- ICANN should mandate a pricing level but ask registry operators whether something they are doing might circumvent the RPMs. -- Pricing recommendations may not need to be taken up with the SubPro PDP WG. -- Could inform SubPro of progress. -- Pricing is outside the picket fence. -- Relates to question 3 -- problem but how we frame it is important. -- Proposal from George Kirikos -- that Sunrise will be eliminated: consider under Preamble questions. -- On (a) at a certain price level it affects the decision of the TM owner to take advantage of the Sunrise. -- Need to be mentioning picket fence. See: https://gnso.icann.org/sites/default/files/file/field-file-attach/picket-fe…. -- Some concern about discriminatory pricing but also that we stay within the picket fence. QUESTION 3: (a) Should Registry Operators be required to create a mechanism that allows trademark owners to challenge the determination that a second level name is a Premium Name or Reserved Name? Tentative Preliminary RecommendationS: 1) [George Kirikos] If there's a challenge mechanism, it could be modeled on the Passive Holding doctrine test under the UDRP (with better clarity, as some panelists misinterpret that test). This would be an Implementation Review Team task. 2)[(Griffin Barnett] ICANN should establish a mechanism that allows trademark owners to challenge a determination by a registry operator that a particular domain name is a "Premium Name" or a "Reserved Name". The mechanism could be a component of an enhanced Sunrise Dispute Resolution Procedure (SDRP), where the challenger brings the issue to the registry first, with the possibility of an appeal to a neutral third party if the initial direct registry interaction does not result in the desired outcome for the challenger. If the challenger ultimately prevails, the registry operator would be required to change the designation of the domain name at issue such that it is no longer identified as a "Premium Name" or a "Reserved Name" and becomes available for registration by the challenger. As part of the proposed challenge mechanism, a defense, or ground for denying the challenge, should be that the registry must continue to designate a certain name as "reserved" to comply with other ICANN policies or applicable law. 3. [Maxim Alzoba] Since all registries are real-time (or almost real-time (there is no requirement to make it strictly real time with reaction in milliseconds, it is not a stock exchange after all), Registries have to use something saying - 'this should not pass registration '(for example Registrar via SSR (interface of the RO - Registry Operator platform) sent command to register a domain... the answer should be - registered /not , almost instantly (with ability to check - why not) or Check command - to understand what is possible to do, in what state the domain is etc.) – so there is no time for offline checks, and all types of exclusions (due to policies of ICANN, SSAC recommendations, prohibitions due to local reasons, like prohibition of the registration, for example due to decision of the local court, or the regulator -all records are in the Reserved list ...) So changing Reserved list, will affect Registries in their ability to run real time platforms (and it is required - via SLA means in RA (registry agreement with ICANN). And the consequences are quite unpredictable (including security and stability concerns). Discussion: -- If there is a mechanism it will need to have an objective standard. George Kirikos: @Julie: I was saying that if there's a challenge mechanism, it could be modeled on the Passive Holding doctrine test under the UDRP (with better clarity, as some panelists misinterpret that test). George Kirikos: @Julie: actual text would be an Implementation Review team task. Maxim Alzoba 2: NOTE: Registries do not have capacity to talk to all third parties / interact Maxim Alzoba 2: Registrars are in the mass market business, not Registries Griffin Barnett: To try and capture my proposal: ICANN should establish a mechanism that allows trademark owners to challenge a determination by a registry operator that a particular domain name is a "Premium Name" or a "Reserved Name". The mechanism could be a component of an enhanced Sunrise Dispute Resolution Procedure (SDRP), where the challenger brings the issue to the registry first, with the possibility of an appeal to a neutral third party if the initial direct registry interaction does not result in the desired outcome for the challenger. Griffin Barnett: If the challenger ultimately prevails, the registry operator would be required to change the designation of the domain name at issue such that it is no longer identified as a "Premium Name" or a "Reserved Name" and becomes available for registration by the challenger Griffin Barnett: (that should be part of my proposal too) Maxim Alzoba 2: Since all registries are real-time (or almost real-time (there is no requirement to make itstrictly real time with reaction ini milliseconds, it is not a stock exchange after all)- Registries have to use something saying - 'this should not pass registration '(for example Registrar via SSR (interface of the RO - Registry Operator platform)sent command to register a domain... the answer should be - registered /not , almost instantly (with ability to check - why not) or Check command - to understand what is possible to do, in what state the domain is e.t.c) - sothere is no time for offline checks, and all types of exclusions (due to policies of ICANN, SSAC recommendations, prohibitions due to local reasons, like prohibition of the registration, for example due to decision of the local court, or the regulator -all records are in the Reserved list ...)So changing Reserved list, will affect Registries in their ability to run real time platforms (and it is required - via SLA means in RA (registry agreement with Maxim Alzoba 2: ICANN).And the consequences are quite unpredictable (including security and stability concerns). Griffin Barnett: To also add something quickly to my proposal also: As part of the proposed challenge mechanism, a defense, or ground for denying the challenge, should be that the registry must continue to deginate a certain name as "reserved" to comply with other ICANN policies or applicable law.

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Reminder - Current Version: Proposed Process for TMCH Sunrise & Trademark Claims Sub Teams & Timeline as of 08 February 2019
by Julie Hedlund March 26, 2019

March 26, 2019

Dear RPM PDP WG and Sub Team members, Per the action item from the WG meeting on 10 March at ICANN64 in Kobe, please see below and attached the current version of the Proposed Process for TMCH Sunrise & Trademark Claims Sub Teams and Timeline. Note in particular the changes reflected below as of 08 February. Best, Mary, Ariel, Berry, and Julie From: GNSO-RPM-WG <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Monday, February 11, 2019 at 3:53 AM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [GNSO-RPM-WG] Updates to RPM PDP WG Timeline & Preliminary Kobe Planning Dear RPM PDP WG members, On behalf of the RPM PDP WG Co-Chairs, please see the attached updated timeline from the Proposed Process for TMCH Sunrise & Trademark Claims Sub Teams. The updated document reflects the WG Co-Chairs’ decision after considering the request from the Sunrise and Trademark Claims Sub Team Co-Chairs, on behalf of Sub Team members, to extend the time for the analysis of the previously collected data as it may pertain to the revised agreed Charter questions. In addition, the updated timeline reflects an adjustment to the due date for WG members to submit suggestions for additional data, and to submit individual proposals. Finally, the timeline reflects the WG Co-Chairs suggestion for the WG meeting sessions at ICANN64 in Kobe. The updates are summarized as follows: 1. Extend Sub Team analysis of previously collected data to meetings on 20 and 27 February (to include 13 February). 2. Close of Submission of Additional Data: extended from COB Friday, 08 February to COB Wednesday, 13 February. 3. Close of Submission of Individual Proposals: extended from COB Thursday, 21 February to COB Wednesday, 27 March. 4. Proposed Sessions for ICANN64 in Kobe: * Session 1: Sunday, 10 March, 1515-1645 -- Sunrise Sub Team Meeting * Session 2: Sunday, 10 March, 1700-1830 -- Sunrise Sub Team Meeting * Session 3: Monday, 11 March, 1215-1315 -- TM Claims Sub Team Meeting * Session 4: Monday, 11 March, 1330-1500 -- Full WG Meeting The WG Co-Chairs may make further adjustments to the timeline as may be requested by the Sub Team Co-Chairs to further facilitate the work of the Sub Teams, and as may be requested by WG members. Best regards, Mary, Ariel, and Julie

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REMINDER - Proposed Agenda - RPM PDP WG Sunrise Sub Team - 27 March 2019
by Julie Hedlund March 26, 2019

March 26, 2019

Dear All, Please see the agenda below and the attached documents for the meeting on Wednesday, 27 March at 18:00 UTC. Note for US participants – the time of 87:00 UTC is one hour later than previously in US time zones due to the change to Daylight Savings Time – so, 11:00 PDT and 14:00 EDT. Best, Julie From: Gnso-rpm-sunrise <gnso-rpm-sunrise-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Friday, March 15, 2019 at 12:44 PM To: "gnso-rpm-sunrise(a)icann.org" <gnso-rpm-sunrise(a)icann.org> Subject: [Gnso-rpm-sunrise] Proposed Agenda - RPM PDP WG Sunrise Sub Team - 27 March 2019 Dear RPM PDP Sunrise Sub Team members, For the meeting on Wednesday, 27 March at 18:00 UTC the Sub Team will continue the development of preliminary recommendations. Here is a proposed Draft Agenda: 1. Review agenda/updates to Statements of Interest (SOIs) 2. Development of Preliminary Recommendations 3. AOB For reference concerning the discussion and progress at ICANN64 in Kobe on 10-11 March, please see below the brief notes, but also the attached transcripts and the Sunrise Summary Table. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Session 2 – 10 March 2019 1. Continued WG Discussion: -- Not allow additional comments in or additional proposals in after the sub teams because points could be reopened and re-litigated by these new proposals. -- For the individual proposals the actual deadline is March 27. And the sub teams aren't going to have the completed development of preliminary recommendations until April 3 and those individual proposals aren't even going to be reviewed until April 10. -- That is the individual proposals, not the sub team proposals (preliminary recommendations). Not a subsequent bite at proposals. The timing problem was an interesting one because we did want the individual proposals to come through the sub teams before they disbanded. And they disband upon delivery of their recommendations up to the sub team. -- Staff will resend the proposed process. 2. Sunrise Sub Team Meeting: Question 7: (a) Can SMD files be used for Sunrise Period registrations after they have been canceled or revoked? (b) How prevalent is this as a problem? Tentative Preliminary Recommendation: Suggestion is that the answer is “no”. The SMD file cannot be used for Sunrise Period registrations after being canceled or revoked and this problem is not prevalent. Discussion: -- Start with Question 7. -- The first part of this question, Part A, is yes based on what we've seen because the onus is on the trademark holder to inform the Trademark Clearinghouse of the revocation or the cancellation then we can reasonably conclude that SMD files can be used for Sunrise periods even though they shouldn't. -- How prevalent is this as a problem? Don’t have much data. -- Question is about what happens if a trademark is abandoned and how do we ensure that the brand owner (former brand owner) isn’t misusing the SMD file? -- Concern that SMD files could be canceled, revoked but trademark owners could try to use them. -- Don’t think we can say that the problem is prevalent. -- Note that it’s bifurcated – both about the SMD file and the trademark. -- There’s already a solution to this problem. -- Is the country and trademark registration part of the SMD file? There’s an FAQ on the TMCH web page that the first five lines are human readable. Other than the mark the SMD file does not contain human readable information about the file. -- So to question 7 it’s whether an SMD file can be used to register in Sunrise after the SMD file has been canceled or revoked. -- Second question is about the trademark – if the trademark underlying an SMD file is abandoned can the SMD file be used to do a Sunrise registration filing? We looked and when the trademark dies the SMD file dies. -- The second part of the question is whether this is a prevalent problem and we’re hearing no. So, our answer to the question should be no. Question 1: (a) Should the availability of Sunrise registrations only for identical matches be reviewed? (b) If the matching process is expanded, how can Registrant free expression and fair use rights be protected and balanced against trademark rights? Tentative Preliminary Recommendation: Suggestion is that the answer is “no”. The availability of Sunrise registrations only for identify matches should not be reviewed and the matching process should not be expanded. Discussion: -- Based on the data the answer to (a) would be no and thus (b) does not require an answer. -- We need to answer the charter question, which - and I think the answer to the question is no, we should not be reviewing the availability of Sunrise registrations only for identical matches, which means there's no - we don't need to answer Question B and that there - and that there's no preliminary recommendation that comes out of this question. So I think that is the end result of this. -- But good to make a recommendation, even if it is not to change the status quo. Session 3 – 11 March 2019 Question 2: (Threshold question: Is Registry pricing within the scope of the RPM WG or ICANN's review?) (a) Does Registry Sunrise or Premium Name pricing practices unfairly limit the ability of trademark owners to participate during Sunrise? (b) If so, how extensive is this problem? Tentative Preliminary Recommendation: Not at this time. Continue the discussion at the next meeting and also in relation to question 3. Discussion: -- Data speaks to this. -- Possible answer: Registry pricing may not specifically be in the scope, but we could address it to put it before the SubPro WG. Based on the data there is evidence that pricing practice do unfairly limit the ability of trademark owners to participate during Sunrise. -- Key part of sub question (a) is the word “unfairly” – is it a fair economic model. Need to distinguish between premium pricing that could be legitimate. There were limited responses so not a representative sample. -- The key thing is whether the pricing is discriminatory against brand owners compared to other categories. Address abusive pricing models. -- Pricing is outside the scope of the RPM WG (per at least one Sub Team member). -- Not sure if the use of the term “discriminatory” is quite accurate. Challenging to define “unfairly” because that suggests that there is “fair” pricing. -- Instances where high prices were put on well-known brands. Maybe discussing targeted pricing that is aimed not a high-value generics, but to those with brand value. -- Pricing per se is outside of scope, but it’s about where pricing was fixed in a way to circumvent the rights protection mechanism – such as adopting very high prices only during the Sunrise period. There were some examples of that. -- There were examples of clients who were told that their name was a well-known brand so the price was higher as the name was on the premium list. -- On discrimination it is worth noting that is you have well-known brands they can afford to pay more. If you talk about unfairly limiting Sunrise, the question is does it preclude participation. -- Pricing is always going to impact levels of participation. -- From the registry operators’ point of view it is expected that people would try this – pricing almost becomes a negotiation. -- Economic decision to put it into Sunrise depending on the pricing. There are other RPMs to deal with abuses. -- Examples: 1) pricing at different levels depending on the brand, 2) all pricing is high in Sunrise, or 3) pricing drops for certain names outside of Sunrise. -- Suggesting that a brand can afford so why not charge it seems abusive. Does seem to interfere with Sunrise. -- To what extent does this happen? Is there really a problem? Not sure if the data backs this up. -- We can agree that registries should be able to use pricing to circumvent RPMs. There are contractual restrictions on abusive pricing – pricing uniformity. We could refer this to SubPro. -- What should we recommend? Pricing caps for different brands/value of words? How to determine the value? Could be very complex and impractical. Or could just suggest a more high-level recommendation. -- Re: Spec 11, Section 2.10(c) of the RA states “The parties acknowledge that the purpose of this Section 2.10(c) is to prohibit abusive and/or discriminatory Renewal Pricing practices imposed by Registry Operator without the written consent of the applicable registrant at the time of the initial registration of the domain and this Section 2.10(c) will be interpreted broadly to prohibit such practices.” From the PIC: “Registry Operator will operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies.” -- Note that Questions 2 and 3 are related. -- Sunrise if for Trademarks – not competing with other identifiers in this period. So, we could be singling out certain marks, and the other is the pricing practices. -- Data in INTA and AG surveys – responses from TM and Brand owners indicated that they thought the problem was extensive. -- Not sure we are able to answer the question – not sure we have the data to answer “yes” in a helpful way except that it has the ability to limit TM owners from participating in Sunrise – but is this “unfairly” limiting? -- If we look to the preamble question – whether Sunrise is achieving its purpose – and this question in that context.

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Proposed Agenda - RPM PDP WG Sunrise Sub Team - 27 March 2019
by Julie Hedlund March 15, 2019

March 15, 2019

Dear RPM PDP Sunrise Sub Team members, For the meeting on Wednesday, 27 March at 18:00 UTC the Sub Team will continue the development of preliminary recommendations. Here is a proposed Draft Agenda: 1. Review agenda/updates to Statements of Interest (SOIs) 2. Development of Preliminary Recommendations 3. AOB For reference concerning the discussion and progress at ICANN64 in Kobe on 10-11 March, please see below the brief notes, but also the attached transcripts and the Sunrise Summary Table. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Session 2 – 10 March 2019 1. Continued WG Discussion: -- Not allow additional comments in or additional proposals in after the sub teams because points could be reopened and re-litigated by these new proposals. -- For the individual proposals the actual deadline is March 27. And the sub teams aren't going to have the completed development of preliminary recommendations until April 3 and those individual proposals aren't even going to be reviewed until April 10. -- That is the individual proposals, not the sub team proposals (preliminary recommendations). Not a subsequent bite at proposals. The timing problem was an interesting one because we did want the individual proposals to come through the sub teams before they disbanded. And they disband upon delivery of their recommendations up to the sub team. -- Staff will resend the proposed process. 2. Sunrise Sub Team Meeting: Question 7: (a) Can SMD files be used for Sunrise Period registrations after they have been canceled or revoked? (b) How prevalent is this as a problem? Tentative Preliminary Recommendation: Suggestion is that the answer is “no”. The SMD file cannot be used for Sunrise Period registrations after being canceled or revoked and this problem is not prevalent. Discussion: -- Start with Question 7. -- The first part of this question, Part A, is yes based on what we've seen because the onus is on the trademark holder to inform the Trademark Clearinghouse of the revocation or the cancellation then we can reasonably conclude that SMD files can be used for Sunrise periods even though they shouldn't. -- How prevalent is this as a problem? Don’t have much data. -- Question is about what happens if a trademark is abandoned and how do we ensure that the brand owner (former brand owner) isn’t misusing the SMD file? -- Concern that SMD files could be canceled, revoked but trademark owners could try to use them. -- Don’t think we can say that the problem is prevalent. -- Note that it’s bifurcated – both about the SMD file and the trademark. -- There’s already a solution to this problem. -- Is the country and trademark registration part of the SMD file? There’s an FAQ on the TMCH web page that the first five lines are human readable. Other than the mark the SMD file does not contain human readable information about the file. -- So to question 7 it’s whether an SMD file can be used to register in Sunrise after the SMD file has been canceled or revoked. -- Second question is about the trademark – if the trademark underlying an SMD file is abandoned can the SMD file be used to do a Sunrise registration filing? We looked and when the trademark dies the SMD file dies. -- The second part of the question is whether this is a prevalent problem and we’re hearing no. So, our answer to the question should be no. Question 1: (a) Should the availability of Sunrise registrations only for identical matches be reviewed? (b) If the matching process is expanded, how can Registrant free expression and fair use rights be protected and balanced against trademark rights? Tentative Preliminary Recommendation: Suggestion is that the answer is “no”. The availability of Sunrise registrations only for identify matches should not be reviewed and the matching process should not be expanded. Discussion: -- Based on the data the answer to (a) would be no and thus (b) does not require an answer. -- We need to answer the charter question, which - and I think the answer to the question is no, we should not be reviewing the availability of Sunrise registrations only for identical matches, which means there's no - we don't need to answer Question B and that there - and that there's no preliminary recommendation that comes out of this question. So I think that is the end result of this. -- But good to make a recommendation, even if it is not to change the status quo. Session 3 – 11 March 2019 Question 2: (Threshold question: Is Registry pricing within the scope of the RPM WG or ICANN's review?) (a) Does Registry Sunrise or Premium Name pricing practices unfairly limit the ability of trademark owners to participate during Sunrise? (b) If so, how extensive is this problem? Tentative Preliminary Recommendation: Not at this time. Continue the discussion at the next meeting and also in relation to question 3. Discussion: -- Data speaks to this. -- Possible answer: Registry pricing may not specifically be in the scope, but we could address it to put it before the SubPro WG. Based on the data there is evidence that pricing practice do unfairly limit the ability of trademark owners to participate during Sunrise. -- Key part of sub question (a) is the word “unfairly” – is it a fair economic model. Need to distinguish between premium pricing that could be legitimate. There were limited responses so not a representative sample. -- The key thing is whether the pricing is discriminatory against brand owners compared to other categories. Address abusive pricing models. -- Pricing is outside the scope of the RPM WG (per at least one Sub Team member). -- Not sure if the use of the term “discriminatory” is quite accurate. Challenging to define “unfairly” because that suggests that there is “fair” pricing. -- Instances where high prices were put on well-known brands. Maybe discussing targeted pricing that is aimed not a high-value generics, but to those with brand value. -- Pricing per se is outside of scope, but it’s about where pricing was fixed in a way to circumvent the rights protection mechanism – such as adopting very high prices only during the Sunrise period. There were some examples of that. -- There were examples of clients who were told that their name was a well-known brand so the price was higher as the name was on the premium list. -- On discrimination it is worth noting that is you have well-known brands they can afford to pay more. If you talk about unfairly limiting Sunrise, the question is does it preclude participation. -- Pricing is always going to impact levels of participation. -- From the registry operators’ point of view it is expected that people would try this – pricing almost becomes a negotiation. -- Economic decision to put it into Sunrise depending on the pricing. There are other RPMs to deal with abuses. -- Examples: 1) pricing at different levels depending on the brand, 2) all pricing is high in Sunrise, or 3) pricing drops for certain names outside of Sunrise. -- Suggesting that a brand can afford so why not charge it seems abusive. Does seem to interfere with Sunrise. -- To what extent does this happen? Is there really a problem? Not sure if the data backs this up. -- We can agree that registries should be able to use pricing to circumvent RPMs. There are contractual restrictions on abusive pricing – pricing uniformity. We could refer this to SubPro. -- What should we recommend? Pricing caps for different brands/value of words? How to determine the value? Could be very complex and impractical. Or could just suggest a more high-level recommendation. -- Re: Spec 11, Section 2.10(c) of the RA states “The parties acknowledge that the purpose of this Section 2.10(c) is to prohibit abusive and/or discriminatory Renewal Pricing practices imposed by Registry Operator without the written consent of the applicable registrant at the time of the initial registration of the domain and this Section 2.10(c) will be interpreted broadly to prohibit such practices.” From the PIC: “Registry Operator will operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies.” -- Note that Questions 2 and 3 are related. -- Sunrise if for Trademarks – not competing with other identifiers in this period. So, we could be singling out certain marks, and the other is the pricing practices. -- Data in INTA and AG surveys – responses from TM and Brand owners indicated that they thought the problem was extensive. -- Not sure we are able to answer the question – not sure we have the data to answer “yes” in a helpful way except that it has the ability to limit TM owners from participating in Sunrise – but is this “unfairly” limiting? -- If we look to the preamble question – whether Sunrise is achieving its purpose – and this question in that context.

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Notes and Action Items - RPM PDP WG Sunrise Sub Team - 10-11 March 2019
by Julie Hedlund March 13, 2019

March 13, 2019

Dear RPM PDP Sunrise Sub Team members, Please see below the notes from the Sub Team meetings at ICANN64 in Kobe on 10-11 March 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcripts, or the chat, which will be posted at: https://community.icann.org/display/RARPMRIAGPWG/2019-03-10+ICANN64+Kobe+-+… and https://community.icann.org/display/RARPMRIAGPWG/2019-03-11+ICANN64+Kobe+-+…. Please also see the referenced summary table and the transcripts from Sessions 2 and 3. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Session 2 – 10 March 2019 1. Continued WG Discussion: -- Not allow additional comments in or additional proposals in after the sub teams because points could be reopened and re-litigated by these new proposals. -- For the individual proposals the actual deadline is March 27. And the sub teams aren't going to have the completed development of preliminary recommendations until April 3 and those individual proposals aren't even going to be reviewed until April 10. -- That is the individual proposals, not the sub team proposals (preliminary recommendations). Not a subsequent bite at proposals. The timing problem was an interesting one because we did want the individual proposals to come through the sub teams before they disbanded. And they disband upon delivery of their recommendations up to the sub team. -- Staff will resend the proposed process. 2. Sunrise Sub Team Meeting: Question 7: (a) Can SMD files be used for Sunrise Period registrations after they have been canceled or revoked? (b) How prevalent is this as a problem? Tentative Preliminary Recommendation: Suggestion is that the answer is “no”. The SMD file cannot be used for Sunrise Period registrations after being canceled or revoked and this problem is not prevalent. Discussion: -- Start with Question 7. -- The first part of this question, Part A, is yes based on what we've seen because the onus is on the trademark holder to inform the Trademark Clearinghouse of the revocation or the cancellation then we can reasonably conclude that SMD files can be used for Sunrise periods even though they shouldn't. -- How prevalent is this as a problem? Don’t have much data. -- Question is about what happens if a trademark is abandoned and how do we ensure that the brand owner (former brand owner) isn’t misusing the SMD file? -- Concern that SMD files could be canceled, revoked but trademark owners could try to use them. -- Don’t think we can say that the problem is prevalent. -- Note that it’s bifurcated – both about the SMD file and the trademark. -- There’s already a solution to this problem. -- Is the country and trademark registration part of the SMD file? There’s an FAQ on the TMCH web page that the first five lines are human readable. Other than the mark the SMD file does not contain human readable information about the file. -- So to question 7 it’s whether an SMD file can be used to register in Sunrise after the SMD file has been canceled or revoked. -- Second question is about the trademark – if the trademark underlying an SMD file is abandoned can the SMD file be used to do a Sunrise registration filing? We looked and when the trademark dies the SMD file dies. -- The second part of the question is whether this is a prevalent problem and we’re hearing no. So, our answer to the question should be no. Question 1: (a) Should the availability of Sunrise registrations only for identical matches be reviewed? (b) If the matching process is expanded, how can Registrant free expression and fair use rights be protected and balanced against trademark rights? Tentative Preliminary Recommendation: Suggestion is that the answer is “no”. The availability of Sunrise registrations only for identify matches should not be reviewed and the matching process should not be expanded. Discussion: -- Based on the data the answer to (a) would be no and thus (b) does not require an answer. -- We need to answer the charter question, which - and I think the answer to the question is no, we should not be reviewing the availability of Sunrise registrations only for identical matches, which means there's no - we don't need to answer Question B and that there - and that there's no preliminary recommendation that comes out of this question. So I think that is the end result of this. -- But good to make a recommendation, even if it is not to change the status quo. Session 3 – 11 March 2019 Question 2: (Threshold question: Is Registry pricing within the scope of the RPM WG or ICANN's review?) (a) Does Registry Sunrise or Premium Name pricing practices unfairly limit the ability of trademark owners to participate during Sunrise? (b) If so, how extensive is this problem? Tentative Preliminary Recommendation: Not at this time. Continue the discussion at the next meeting and also in relation to question 3. Discussion: -- Data speaks to this. -- Possible answer: Registry pricing may not specifically be in the scope, but we could address it to put it before the SubPro WG. Based on the data there is evidence that pricing practice do unfairly limit the ability of trademark owners to participate during Sunrise. -- Key part of sub question (a) is the word “unfairly” – is it a fair economic model. Need to distinguish between premium pricing that could be legitimate. There were limited responses so not a representative sample. -- The key thing is whether the pricing is discriminatory against brand owners compared to other categories. Address abusive pricing models. -- Pricing is outside the scope of the RPM WG (per at least one Sub Team member). -- Not sure if the use of the term “discriminatory” is quite accurate. Challenging to define “unfairly” because that suggests that there is “fair” pricing. -- Instances where high prices were put on well-known brands. Maybe discussing targeted pricing that is aimed not a high-value generics, but to those with brand value. -- Pricing per se is outside of scope, but it’s about where pricing was fixed in a way to circumvent the rights protection mechanism – such as adopting very high prices only during the Sunrise period. There were some examples of that. -- There were examples of clients who were told that their name was a well-known brand so the price was higher as the name was on the premium list. -- On discrimination it is worth noting that is you have well-known brands they can afford to pay more. If you talk about unfairly limiting Sunrise, the question is does it preclude participation. -- Pricing is always going to impact levels of participation. -- From the registry operators’ point of view it is expected that people would try this – pricing almost becomes a negotiation. -- Economic decision to put it into Sunrise depending on the pricing. There are other RPMs to deal with abuses. -- Examples: 1) pricing at different levels depending on the brand, 2) all pricing is high in Sunrise, or 3) pricing drops for certain names outside of Sunrise. -- Suggesting that a brand can afford so why not charge it seems abusive. Does seem to interfere with Sunrise. -- To what extent does this happen? Is there really a problem? Not sure if the data backs this up. -- We can agree that registries should be able to use pricing to circumvent RPMs. There are contractual restrictions on abusive pricing – pricing uniformity. We could refer this to SubPro. -- What should we recommend? Pricing caps for different brands/value of words? How to determine the value? Could be very complex and impractical. Or could just suggest a more high-level recommendation. -- Re: Spec 11, Section 2.10(c) of the RA states “The parties acknowledge that the purpose of this Section 2.10(c) is to prohibit abusive and/or discriminatory Renewal Pricing practices imposed by Registry Operator without the written consent of the applicable registrant at the time of the initial registration of the domain and this Section 2.10(c) will be interpreted broadly to prohibit such practices.” From the PIC: “Registry Operator will operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies.” -- Note that Questions 2 and 3 are related. -- Sunrise if for Trademarks – not competing with other identifiers in this period. So, we could be singling out certain marks, and the other is the pricing practices. -- Data in INTA and AG surveys – responses from TM and Brand owners indicated that they thought the problem was extensive. -- Not sure we are able to answer the question – not sure we have the data to answer “yes” in a helpful way except that it has the ability to limit TM owners from participating in Sunrise – but is this “unfairly” limiting? -- If we look to the preamble question – whether Sunrise is achieving its purpose – and this question in that context.

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Time for our next sub team call(s) on March 27, 2019
by George Kirikos March 11, 2019

March 11, 2019

Hi folks, I noticed that the invites went out for our next call on March 27, 2019, and the UTC time stayed fixed, whereas the local time (say in Eastern Time in North America) moved forward by 1 hour, due to daylight savings time over the weekend. Is that something that is by design and suitable for everyone? (i.e. calls that were previously at 12:00 noon and 1 pm noon NYC time are now at 1:00 pm and 2:00 pm NYC time respectively; calls that were at 9 am and 10 am Pacific time are now at 10 am and 11 am Pacific time respectively). I'm able to make the new times, but just wanted to make sure that everyone else is happy with the effect of keeping a constant UTC time, and how that will move things when converted to local time. Those movements in local time might cause conflicts with one's local schedule, potentially impacting attendance on our sub team calls. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Today - ICANN64: RPM PDP Meetings 10-11 March 2019
by Julie Hedlund March 11, 2019

March 11, 2019

Dear RPM PDP Working Group and Sub Team members, Please see below the schedule of today’s RPM PDP Working Group (WG) and Sub Team meetings at ICANN64 and note the following: * Box Lunches will be provided for the 12:15-13:15 Sunrise Sub Team meeting. In order to ensure that we can start the meeting on time, we suggest that Sub Team and WG members may wish to arrive a bit early (the room is occupied until Noon). * During the TM Claims Sub Team session at 13:30-15:00 we will observe a moment of silence at 14:46 pm local time in remembrance of the lives lost and people affected by the Great East Japan Earthquake that occurred on 11 March 2011 at 14:46 pm. Best, Mary, Ariel, Berry, and Julie Schedule of RPM PDP Working Group and Sub Team Meetings at ICANN64, Kobe on Monday, 11 March 2019 GNSO Review of all Rights Protection Mechanisms in gTLDs (3 of 4) 12:15 - 13:15, Mon, Mar 11, 2019 – Room: Ruby Details/Remote Participation: https://64.schedule.icann.org/meetings/962131 [64.schedule.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__64.schedule.icann.org_…> Description: Part 3: The GNSO’s Review of All Rights Protection Mechanisms (RPMs) Policy Development Process (PDP) Working Group was chartered in March 2016 to conduct a two-phased PDP. In Phase One, which is ongoing, the Working Group is reviewing all the RPMs that were developed for the 2012 New gTLD Program. This includes developing possible recommendations concerning the use and effectiveness of the Trademark Clearinghouse (TMCH) Sunrise and Trademark Claims RPMs. In the third of four open community sessions being held at ICANN64, the RPM Sunrise Sub Team will begin development of preliminary recommendations relating to Sunrise RPMs. All interested community members are welcome to attend this session. GNSO Review of all Rights Protection Mechanisms in gTLDs (4 of 4) 13:30 - 15:00, Mon, Mar 11, 2019 – Room: Ruby Details/Remote Participation: https://64.schedule.icann.org/meetings/962132 [64.schedule.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__64.schedule.icann.org_…> Description: Part 4: The GNSO’s Review of All Rights Protection Mechanisms (RPMs) Policy Development Process (PDP) Working Group was chartered in March 2016 to conduct a two-phased PDP. In Phase One, which is ongoing, the Working Group is reviewing all the RPMs that were developed for the 2012 New gTLD Program. This includes developing possible recommendations concerning the use and effectiveness of the Trademark Clearinghouse (TMCH) Sunrise and Trademark Claims RPMs. In the fourth of four open community sessions being held at ICANN64, the RPM Trademark Claims Sub Team will begin development of preliminary recommendations relating to Trademark Claims RPMs. All interested community members are welcome to attend this session.

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