Dear Sunrise Sub Team members,

As announced,  this thread is being opened for final mailing list discussions related to Sunrise Agreed Charter Question 3, including Individual Proposals #10 and #11.

We ask that you review the Summary Table (as of 16 April 2019) and provide any additional input you may have to the “tentative answers & preliminary recommendations” in relation to the Agreed Charter Question, and draft answers to the following questions regarding the individual proposals:

a. Should the Sub Team recommend that the full WG consider including this Individual Proposal in the Initial Report for the solicitation of public comment?

b. In light of the Individual Proposal, are any modifications to the current “tentative answers & preliminary recommendations” needed?

c. Should any additional Sub Team recommendations be made in relation to the agreed Sunrise charter question?

Unless the Sub Team Co-Chairs determine otherwise, this discussion thread will remain open until 23:59 UTC on 15 May 2019. Comments/input provided past the closing date or outside this discussion thread will not be taken into account when compiling the final Sub Team member input.

Summary Table (Pages 15-20)

The draft answers, preliminary recommendations, and links to the relevant individual proposals are in the latest Summary Table (as of 16 April 2019):

https://community.icann.org/download/attachments/102138618/%5BSunrise Summary Table%5D %2816 April 2019%29.pdf?version=1&modificationDate=1555515624235&api=v2.

Agreed Sunrise Charter Question 3(a)-(b) (Pages 15-17)

(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?

(b) Additionally, should Registry Operators be required to create a release mechanism in the event that a Premium Name or Reserved Name is challenged successfully, so that the trademark owner can register that name during the Sunrise Period?

Proposed Answer: ICANN Org should establish a uniform mechanism that allows trademark owners to challenge a determination by a Registry Operator that a second level name is a "Premium Name" or a "Reserved Name" during the Sunrise Period. ICANN Org should require Registry Operators to create a release mechanism in the event that a Premium Name or Reserved Name is challenged successfully, so that the trademark owner can register that name during the Sunrise Period.

Draft Recommendation: The Sub Team recommends that ICANN Org establish a uniform mechanism to allow trademark owners to challenge a Registry Operator’s determination that a second level name is a “Premium Name” or “Reserved Name”. The Sub Team recommends, further, that the following Implementation Guidance guide the Implementation Review Team (IRT), which will be created to implement approved policy recommendations from this PDP:

• The mechanism could be a component of an enhanced Sunrise Dispute Resolution Procedure (SDRP), where the challenger brings the issue to the Registry Operator first via a formal process within the registry, 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 designating a certain name as "reserved" to comply with other ICANN policies or applicable law or due to other reasonable justifications.
• The IRT should consider building carve-outs/caveats into the suggested challenge mechanism. The challenge mechanism is not an absolute/automatic challenge; it should include the legitimate grounds for the Premium Name designation or Reserved Name status.
• To avoid overcomplication, the IRT should consider restricting the challenge mechanism to unique non-dictionary trademarks that are recorded in the Trademark Clearinghouse, and/or consider placing a numeric limit on the number of Reserved Names challenged by a trademark owner.
• The IRT should consider modeling the challenge mechanism after the Passive Holding doctrine developed in Uniform Domain Name Dispute Resolution Policy (UDRP) jurisprudence, with clear definitions to prevent potential misinterpretation by the panelists.

Agreed Sunrise Charter Question 3(c) (Pages 16-17)

(c) What concerns might be raised by either or both of these requirements?

Proposed Answer: One Sub Team member noted that Registry Operators may be concerned that any change to the Reserved list will affect their ability to run the required real-time platforms. This may subsequently result in unpredictable consequences, including: violating applicable law/ICANN policies, raising security and stability concerns, undermining Spec 11, rendering the reserved GEO TLDs ineffective. The Sub Team member also noted that Registry Operators may have concerns about gaming by trademark owners and the number of challenges brought by multiple trademark owners that registries have difficulty handling.

Another Sub Team member noted the concern that the suggested challenge mechanism may be of little/infrequent use due to the subjectivity, complications, and expense, as well as potentially fewer domain name applications in the next round of TLDs.

Draft Recommendation: The Sub Team recommends that the RPM Working Group refer the following question to the SubPro Working Group: would it be feasible to recommend that the names recorded in the TMCH either cannot be designated premium or can be designated premium at a certain price ceiling as an exception to ICANN’s position about pricing?

Individual Proposals

Please reference the following pages in the Summary Table for the draft answers to the three questions regarding the individual proposals. Links to the individual proposals are also included below.

Proposal #10 (Pages 17-18): https://community.icann.org/download/attachments/102146375/Proposal%2310.pdf?api=v2

Proposal #11 (Pages 21-22): https://community.icann.org/download/attachments/102146375/Proposal%2311.pdf?api=v2

Best Regards,

Mary, Julie, Ariel