April 2018 - GNSO-RPM-WG - lists.icann.org

REMINDER re: Nominations for RPM Working Group Co-Chair
by Julie Hedlund May 9, 2018

May 9, 2018

Dear Working Group members, Per the message below and the discussions during the RPM PDP WG meetings at ICANN62 (see attached notes) this a reminder that we are seeking nominations for the position of the third Co-Chair to assist in the administration of the WG’s large and complex agenda and encourage members to immediately begin consideration of volunteering or nominating someone else. As noted in the message and for your guidance, please see below the relevant sections of the GNSO Working Group Guidelines on how Working Group leaders are selected. Note that holding an election is not mandatory. It is up to the Working Group to determine whether and how it wishes to appoint an additional Chair. In addition, although (as noted below) the GNSO Council must confirm the appointment via its consent agenda, in the meantime, if the Working Group agrees on an additional chair, he/she can begin serving as an interim appointee. Best regards, 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, March 5, 2018 at 11:45 AM To: gnso-rpm-wg <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] RPM Working Group Co-Chair Dear Working Group members, On behalf of Heather Forrest, Chair of the GNSO Council, Kathy and Philip, Co-Chairs of the RPM Working Group, we are informing you that J. Scott has decided to resign as Co-Chair effective Friday, 02 March. We are all very grateful for J. Scott’s dedication and thoughtful leadership of this Working Group since its inception. At this time we are asking Working Group members to consider the importance for this group to continue to have a third Co-Chair to assist in the administration of its large and complex agenda and encourage members to immediately begin consideration of volunteering or nominating someone else. We also would like to suggest that the Working Group could reserve time during our face-to-face meetings on Saturday, 10 March at ICANN61, to discuss the Co-Chair selection process; based on our recent survey these will be the full WG meetings with the greatest member participation. For your guidance, please see below the relevant sections of the GNSO Working Group Guidelines on how Working Group leaders are selected. Note that holding an election is not mandatory. It is up to the Working Group to determine whether and how it wishes to appoint an additional Chair. In addition, although (as noted below) the GNSO Council must confirm the appointment via its consent agenda, in the meantime, if the Working Group agrees on an additional chair, he/she can begin serving as an interim appointee. We look forward to hearing from the Working Group on how best to proceed. Best regards, Mary, Ariel, Berry and Julie GNSO Working Group Guidelines: https://gnso.icann.org/en/council/annex-1-gnso-wg-guidelines-30jan18-en.pdf… 2.1.4.2 Election of the WG Leaders Unless a Chair has already been named by the Chartering Organization, normally a Chair will be selected at the first meeting of the WG. Until that time, the Chartering Organization’s liaison may fulfill the role of interim Chair. A Working Group may elect to have Co-Chairs and Vice-Chairs. Under extraordinary circumstances, ICANN staff may be requested to perform administrative co- ordination of the WG until such time a Chair can be appointed. Once selected, a Working Group Chair will need to be confirmed by the Chartering Organization (CO). The newly elected Chair will act on a provisional basis until the Chartering Organization has confirmed the appointment. If there are any objections to the selected Chair, the CO will conduct a vote to establish whether there is sufficient support for the selected Chair according to the voting procedures of the CO. If not, the Working Group will be requested to reconsider their choice for Chair and return to the CO with a new proposal. In the unlikely event that the selected Chair is rejected by the CO, the CO must articulate its reason for the rejection and the WG must be able to ask for reconsideration of the decision. Section 2.2: A suggested procedure to conduct elections may be: • Nominations or self-nominations; • Statements of qualifications from candidates, which sets forth the qualifications, qualities and experience that they possess that will serve the particular WG; • Vote by simple majority; • Notification of and subsequent confirmation by the Chartering Organization of results of actions”.

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Draft Letter on UDRP & URS Utilization of WHOIS-Derived Registrant Data (was Response from the Co-Chairs RE: Proposal to Shift URS review to Phase II)
by Corwin, Philip May 2, 2018

May 2, 2018

WG members: Following up on the co-chairs email of April 6th, in which we stated-- In regard to the ability of URS and UDRP providers to continue to have access to the data elements necessary to fulfill their dispute resolution provider (DRP) roles, it is our intent to prepare a draft letter to ICANN's CEO noting that such continued access for DRPs is essential to maintaining these non-judicial alternatives for addressing trademark infringement in the DNS, and requesting that ICANN raise this important matter in its continuing discussions with EU Data Protection Authorities. We will work with staff to prepare this draft letter and then share it with WG members for review and comment, after which we will coordinate with Council Leadership and the WG Liaison regarding transmission of a final text to ICANN management. - Kathy and I have now prepared a draft letter to the GNSO Council, for transmission onward to ICANN management and other parties, for your review. It addresses the subject of the relationship of UDRP and URS administration based upon registrant data obtained from WHOIS records. In preparing this letter we relied extensively on the attached listing of UDRP Policy and Rules and URS Rules and Procedure that mention or are related to registrant data and WHOIS. Please review this attached letter at your earliest opportunity and post any suggested revisions or additions to the WG email list. As initiation of GDPR enforcement is now less than one month away time is of the essence in transmitting this information. Thank you and best regards, Philip & Kathy 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: Corwin, Philip Sent: Friday, April 06, 2018 11:03 AM To: 'john.mcelwaine(a)nelsonmullins.com' <john.mcelwaine(a)nelsonmullins.com>; 'gnso-rpm-wg(a)icann.org' <gnso-rpm-wg(a)icann.org> Subject: Response from the Co-Chairs RE: Proposal to Shift URS review to Phase II Dear John: Thank you for your submission regarding a variety of proposed changes to this Working Group's Charter. Our understanding from discussions with staff is that, while there is no set requirement for the level of support within a WG required to request that GNSO Council consider a Charter revision, such revisions are relatively rare and have in the past been supported by a substantial majority of WG members in the absence of significant opposition prior to transmission to Council for its consideration. We therefore strongly encourage all WG members to carefully review your proposal and, regardless of whether one supports or opposes it, to provide some feedback to the full WG email list so that we can begin to gauge overall support. Such email discussion can be preliminary to a full WG oral discussion on a call sometime in late April or early May, if there are indications of substantial support within the WG and a desire to engage in further discussion. The full WG will resume its regular Wednesday calls by mid-April (we anticipate April 18), after the URS Documents, Practitioners and Providers sub-teams have completed their current work. We also note that your proposal raises multiple issues, including: * Amendment of the WG Charter to move the URS review and recommendations to Phase II * Amendment of the WG Charter to define issues that must, may, and may not be addressed * Adjustment of the WG Charter to provide additional guidance on the scope of URS and UDRP Review * Adjustment of the WG leadership structure for Phase II * Potential pause in the start of Phase II keyed to GDPR impact understanding These are all major issues and we encourage WG members to comment on all of them. Finally, regardless of whether there is substantial support within the WG for any of the elements of your proposal, we agree that the impending enforcement of GDPR raises substantial WHOIS data access issues for trademark owners and for URS and UDRP dispute resolution providers. The issues for trademark owners are currently being discussed within the full ICANN community regarding interim and final compliance models, the latter involving accreditation and tiered data access. In regard to the ability of URS and UDRP providers to continue to have access to the data elements necessary to fulfill their dispute resolution provider (DRP) roles, it is our intent to prepare a draft letter to ICANN's CEO noting that such continued access for DRPs is essential to maintaining these non-judicial alternatives for addressing trademark infringement in the DNS, and requesting that ICANN raise this important matter in its continuing discussions with EU Data Protection Authorities. We will work with staff to prepare this draft letter and then share it with WG members for review and comment, after which we will coordinate with Council Leadership and the WG Liaison regarding transmission of a final text to ICANN management. Best regards, Philip & Kathy 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-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of John McElwaine Sent: Thursday, April 05, 2018 9:55 PM To: gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [EXTERNAL] [gnso-rpm-wg] Proposal to Shift URS review to Phase II Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group's charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The "third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program." 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group ("RPM Working Group"). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP's Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP's Charter were broadly defined: "In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future." 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled "LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP" This "list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue". This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a "cybersquatter"? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group "should look like". (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS ("Transcript") at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have "more defined issues, [be] more bounded, more limited." (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that "that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience." (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant's country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder's product. 4. Cannot determine on what date the domain name was "registered" by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a "competitor" that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-0…. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <http://www.nelsonmullins.com/img/ecard-logo.png> JOHN C. MCELWAINE PARTNER john.mcelwaine(a)nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com> LIBERTY CENTER | SUITE 600 151 MEETING STREET | CHARLESTON, SC 29401 T 843.534.4302 F 843.722.8700 101 CONSTITUTION AVENUE, NW | SUITE 900 WASHINGTON, D.C., 20001 T 202.689.2939 F 202.689.2862 NELSONMULLINS.COM<http://www.nelsonmullins.com> VCARD<http://www.nelsonmullins.com/people/john-mcelwaine/vcard> VIEW BIO<http://www.nelsonmullins.com/people/john-mcelwaine> Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately either by phone (800-237-2000) or reply to this e-mail and delete all copies of this message.

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Re: [gnso-rpm-wg] [Ext] RE: Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC
by Julie Hedlund April 30, 2018

April 30, 2018

Hi Susan and WG members, Please see the updated Google sheet with the change as suggested: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZb…. Kind regards, Julie From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Monday, April 30, 2018 at 10:44 AM To: Susan Payne <susan.payne(a)valideus.com>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: Re: [gnso-rpm-wg] [Ext] RE: Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC Hi Susan, Thanks so much for your helpful suggestion. Staff will make the change. Kind regards, Julie From: Susan Payne <susan.payne(a)valideus.com> Date: Monday, April 30, 2018 at 10:42 AM To: Julie Hedlund <julie.hedlund(a)icann.org>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [Ext] RE: Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC Thanks Julie Regarding the Google sheet summary for agenda item 4, I would not characterise line 14 on the responses tab as opposing John McElwaine’s proposal but rather as supporting it: Cyntia King (to Jeff Neuman): Thanks for the technical expertise, Jeff. Although I would find it gratifying, after 2 years of work, to knock out a report on all the new RPMs, I find the current GDPR work a fatal impediment to completing the review of URS & UDRP separately. Work on the Providers sub-team has convinced me that the URS and UDRP share similar mechanisms & processes (for example: RPM provider reporting, the hiring/training/monitoring of examiners, notification of parties to RPM proceedings, etc.) most easily addressed together. As well, many of these mechanisms & processes will be similarly impacted by the GDPR. I think it makes sense at this point to address the URS & UDRP together, especially as the moving parts of the GDRP eventually fall into place. http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002912.html Could I suggest that this be moved to the “support” section please. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne(a)valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Hedlund Sent: 27 April 2018 21:38 To: gnso-rpm-wg(a)icann.org Subject: [gnso-rpm-wg] Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Proposed Agenda: Roll call and updates to Statements of Interest (1 minute) Final Status of Questions for Practitioners and Providers (9 minutes) Report from the Documents Sub Team (20 minutes) Discussion on URS Phase II proposal (59 minutes) See John McElwaine’s original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZb… [docs.google.com] Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry

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Re: [gnso-rpm-wg] [Ext] RE: Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC
by Julie Hedlund April 30, 2018

April 30, 2018

Hi Susan, Thanks so much for your helpful suggestion. Staff will make the change. Kind regards, Julie From: Susan Payne <susan.payne(a)valideus.com> Date: Monday, April 30, 2018 at 10:42 AM To: Julie Hedlund <julie.hedlund(a)icann.org>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [Ext] RE: Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC Thanks Julie Regarding the Google sheet summary for agenda item 4, I would not characterise line 14 on the responses tab as opposing John McElwaine’s proposal but rather as supporting it: Cyntia King (to Jeff Neuman): Thanks for the technical expertise, Jeff. Although I would find it gratifying, after 2 years of work, to knock out a report on all the new RPMs, I find the current GDPR work a fatal impediment to completing the review of URS & UDRP separately. Work on the Providers sub-team has convinced me that the URS and UDRP share similar mechanisms & processes (for example: RPM provider reporting, the hiring/training/monitoring of examiners, notification of parties to RPM proceedings, etc.) most easily addressed together. As well, many of these mechanisms & processes will be similarly impacted by the GDPR. I think it makes sense at this point to address the URS & UDRP together, especially as the moving parts of the GDRP eventually fall into place. http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002912.html Could I suggest that this be moved to the “support” section please. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne(a)valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Hedlund Sent: 27 April 2018 21:38 To: gnso-rpm-wg(a)icann.org Subject: [gnso-rpm-wg] Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Proposed Agenda: Roll call and updates to Statements of Interest (1 minute) Final Status of Questions for Practitioners and Providers (9 minutes) Report from the Documents Sub Team (20 minutes) Discussion on URS Phase II proposal (59 minutes) See John McElwaine’s original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZb… [docs.google.com] Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry

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Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC
by Julie Hedlund April 30, 2018

April 30, 2018

Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 25 April 2018, scheduled for 1200 UTC (note earlier time – calendar invite will be sent via separate email): Proposed Agenda: Roll call and updates to Statements of Interest Status of Questions for Practitioners Finalize Questions for Providers Notice of agenda for 02 May meeting Best regards, Mary, Julie, Ariel and Berry

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Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers
by Nahitchevansky, Georges April 28, 2018

April 28, 2018

Michael: I think the fundamental problem with your question is that it assumes that there is a basic policy of having an equal number of panelists that represent complainants and respondents. Neither the URS nor the UDRP require this, and it is not part of the policy. The issue is whether panelists appointed are impartial and whether the providers do anything to make sure that is the case. Your question, on the other hand, suggests that unless you have balance between the two camps there is no impartiality. Do you have concrete evidence in support for that proposition beyond a handful of decisions you might not like. I think Cynthia's points were meant to point out the difficulties with your balance proposition, why your question will not provide meaningful data and why the focus should not be on some alleged concept of artificial balance but should be on the fundamental issue of impartiality. Simply put, are the providers following the policy and appointing panelists that are generally impartial and conflict free. That is the only question that is relevant at this point. If you feel that the policy should be changed then raise it with the entire group and the group can then debate that for however long it takes. Georges From: mkaranicolas(a)gmail.com Sent: April 27, 2018 8:29 PM To: cking(a)modernip.com Cc: gnso-rpm-wg(a)icann.org Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers Thanks. This seems to be basically a restatement of the objections you raised previously. Some of these issues (such as whether the information is "unknowable") have already been resolved by shifting focus to any policies which may have been put in place. The remainder seems to consist of speculation regarding potential policy proposals which may be suggested based on the findings. Obviously we're not at the point where we're debating any policy connected with this yet (though it's a neat trick to raise a bunch of hypotheticals which nobody has suggested and then complain that the question lends itself supposition and misunderstanding). Let's just get the data first, and leave the conversations about policy responses until afterwards. On Fri, Apr 27, 2018 at 7:14 PM, Cyntia King <cking(a)modernip.com<mailto:cking@modernip.com>> wrote: Hi Michael & Georges, Thank you for taking the time to consider this question. My comments below: Please find a revised question regarding examiners attached: In selecting examiners, do you have policies in place that are aimed at developing a roster which includes a balance of lawyers who focus on trademark enforcement and those who represent respondents, and would you say these policies have been effective in generating a balance of examiners who represent both sides? In my opinion this question is a problem & should not be included in the survey. The underlying intent of this question - balance of lawyers representing TM owners & Respondents – (1) seems to assume a non-existent guideline, (2) is unknowable & (3) is inappropriate. 1. This is not a policy in the provider contract, so URS Providers should not be accountable for policies/effectiveness. This is a policy issue - as the guideline does not exist, should we create it? 2. As not all Examiners are practicing attorneys (some are academics, judges, policy experts or simply non-practicing), do we intend to set hiring levels for additional classes of Examiners? 3. Whether a lawyer is as “enforcement” or “respondent” is virtually unknowable: * Providers will not know (and should not make assumptions about) the client makeup of their Examiners. * As many have observed, Examiners may not be free to characterize the nature of their client’s work; and looking at URS cases filed is not a good way to know the extent of a lawyers work profile. * I have clients who are both TM-holders & domainers; certainly this can apply to attorneys, as well. * Further, there may be little/no distinction between TM enforcement & respondents. (E.g. the legal battle between Microsoft & Apple over the term “app store” is a good example of how both sides can be complainant/respondent even on the same issue. Notably both companies had domains associated w/ “app store” as did Salesforce.) 4. This question is inappropriate & presupposes the dubious ‘value’ of “generating a balance of examiners who represent both sides.” * It is a fallacy that an attorney who happens to have clients in either camp means they cannot be impartial. We expect civil/criminal judges (the vast majority of whom were attorneys before being enrobed) to be impartial. * The idea of “balance” is fatally flawed: i. Do we really want to inject this kind of partisanship into URS/UDRP decision-making? It’s reasonable to believe that this kind of policy will lead to ‘Examiner-shopping’ by both claimants & respondents. This will not bring the “enforcement” & “respondent” communities closer together, rather this is sure to create new divisions. ii. Using to the reasoning behind the questions, any partisanship in the writing of decisions would lead to even less certainty of outcomes than currently exists, as panelist decisions swing according to their designated camp. iii. What is balance? Is it assumed that the goal is 50/50? What if the total pool of attorneys qualified to fill the role of Examiner are 70% “enforcement” & 30% “respondent”? Do we then impose a policy based on the proportionality of the applicant pool? iv. If it’s determined that “balance” is desirable and we can define what that means, this could be a logistical challenge for Providers to achieve. How do you recruit Examiners that meet this criteria? How long would it take to actually meet such a goal? What is the increased cost to turn away qualified applicants in order to fill the quota of “enforcement” or “respondent” Examiners? v. How will other obligations (like requirements to conduct proceedings in local languages) affect this “balance”? And how burdensome will it be for Providers to try to extend this criteria across other qualifications? In conclusion, this question is fraught w/ potential for supposition, misunderstanding & inaccuracy, and has dubious value. The criteria for Panelists is that they have to be impartial and declare they do not have a conflict. Even if ”balance” were desirable, it is a near-impossibility to create this mythical symmetry of interests. Should the working group decide this is a policy we may wish to pursue, then we would need a much larger discussion on the issue. Cyntia King E: cking@modernip O: +1 81-ModernIP C: +1 818.209.6088<tel:+18182096088> [MIP Composite (Email)] From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Nahitchevansky, Georges Sent: Thursday, April 26, 2018 6:52 AM To: Michael Karanicolas <mkaranicolas(a)gmail.com<mailto:mkaranicolas@gmail.com>>; McAuley, David via gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers My concern with compound questions like this is that they have underlying assumptions that we are not even sure exist (for example that there is a possible imbalance) which make them loaded questions. Moreover, as they are bulky they will likely not generate much relevant information. It seems to me that such an inquiry should be more neutral, focused on what the URS rules specifically require of providers in appointing panelists and inquire as to whether those rules are being followed. From: mkaranicolas(a)gmail.com<mailto:mkaranicolas@gmail.com> Sent: April 25, 2018 3:58 PM To: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers Hi all, Please find a revised question regarding examiners attached: In selecting examiners, do you have policies in place that are aimed at developing a roster which includes a balance of lawyers who focus on trademark enforcement and those who represent respondents, and would you say these policies have been effective in generating a balance of examiners who represent both sides? Thanks, Michael Karanicolas On Wed, Apr 25, 2018 at 1:44 PM, George Kirikos <icann(a)leap.com<mailto:icann@leap.com>> wrote: > Hi folks, > > During today's call, I was asked to propose new wording for some of > the questions. Using the page numbering of the April 24th redline > version as the starting point: > > 1. page 6, Q11: > > Current Version: "Do you believe the deadline for filing Responses is > long enough? Please provide your rationale. If not, what time period > would you support, keeping in mind that the URS is supposed to operate > with rapidity?" > > Proposed Language: "Have you received any feedback from respondents > that the time period to respond to a URS complaint is too low? > > [as an aside, conceivably, if all we're looking for is facts/data from > the provider, rather than their opinion on policy changes, part of > this might already be captured implicitly through Q3 on page 5; > although, some respondents might have suffered through a short > deadline, without asking for an extension] > > 2. Page 9, Q12(c): > > Current Version: "What is the procedure for assigning examiners? (i.e. > how large is the pool of examiners, is it randomly assigned; some > studies suggest a large number of cases are handled by a relatively > small number of potential examiners)" > > Proposed Language: > "12(c)(i) How large is the pool of URS examiners? > 12(c)(ii) Are the examiners randomly assigned, rotated, or assigned > using some other procedure (please specify)?" > > [aside: 12(c)(ii) seems to have already been responded to partially, > based on the earlier wording of the question] > > 3. Page 13, Q10: > > Current Version: "Does the Provider have clerks or other staff that > 'ghost-write' decisions for Examiners, before the Examiner has made a > Determination independently, that the Examiner can simply sign their > name to if they agree with it?" > > Proposed Language: [trying to be as diplomatic as I can -- my company > does own Diplomacy.com<http://Diplomacy.com>! :-) ] > "To what extent does the Provider supply Examiners with information, > analysis or research concerning a Complaint or Response that is not to > be found within the Complaint or Response itself? Does the Provider > provide drafts or exemplars to the Examiners?" > > [aside: the "drafts" and "exemplars" language came from Rebecca's > suggestion in the WebEx chat today; I hope I used it appropriately, > although I'm welcome to friendly amendments; you'll recall that the > "ghost-writing" term came from Paul Keating's comment to the article > at: > > http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/ > > "In the case of NAF they are (with reason) suspected of having inside > clerks ghost-write opinions for delivery to the panelists." (excerpt; > full quote has been posted before on this list) > > As I noted in the Webex chatroom and orally today, there had been > instances in the past where the same gibberish/nonsense appeared > verbatim across multiple decisions (in the UDRP) from different > panelists > > http://www.circleid.com/posts/20100423_naf_copying_pasting_nonsense_into_ud… > > That article had a comment from Brett Lewis that stated (I'll quote it > in it's entirety, to not take things out of context): > > "NAF decisions are drafted by in-house staffers who present the drafts > to Panelists. If the Panelists agree with the staffer's decision, > they can simply adopt the decision as their own. If the Panelists > disagree, the Panelists have to draft a new decision. There is > certainly an incentive to go along with the staff draft, but let's > give panelists a little more credit. Most panelists that is. > > Staffers undoubtedly cut and paste, as all lawyers do — especially > when working for so little money. The real issue is whether the > cutting and pasting is a sign of something more sinister — bias. > Justice by factory because the trademark holder is always right. > > It seems that a number of the cut and paste jobs here actually went in > favor of the Respondents. I'd need to see more before I could say > this is bias and not just sloppiness. Also, what was being cut and > pasted makes a big difference. The UDRP system is far from perfect, > and certain panelists are doing more of a hatchet job than they should > be, but when they are getting paid a nominal amount to review papers > and draft a decision, some degree of recycling is likely to happen. > Still, it wouldn't kill NAF to review the decisions before they're > published. " > > Later on, in response to my question whether WIPO does the same, he > wrote (with the title of "Sausage Factory"): > > "I don't believe that WIPO does it. > > I'm not sure exactly how NAF does it, but they used to have staff > members draft the decisions first, then submit them to the Panelists. > The Panelists could adopt, modify, or reject the draft decisions. I'm > not sure if they do that when there's a three-member Panel, since > contested matters are generally more complex and more difficult to > decide." > > and later: > > "Judges often rely on law clerks to assist them to draft decisions. > The idea may not be all that different. The only issue would be > whether panelists are abdicating their responsibility to be impartial > fact finders in lieu of just signing onto a draft decision. I don't > believe that most panelists would do that, but for some, it might > happen — especially if they have a particular view of respondents that > fits the draft." > > So, I hope the above helps members of this PDP understand that this > issue isn't "coming out nowhere".] > > Sincerely, > > George Kirikos > 416-588-0269<tel:4165880269> > http://www.leap.com/ > > > > On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <icann(a)leap.com<mailto:icann@leap.com>> wrote: >> Thanks for the updated document, and for reflecting many of the >> comments I had previously submitted: >> >> https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002890.html >> >> Some additional thoughts: >> >> A] On page 13 of the redline document, Q10 (with regards to the >> "ghost-writing"), the question was not intended to be "incendiary", as >> per Justine Chew's comment. The issue had been brought up in the past >> by Paul Keating (a member of this PDP), in a comment to an article in >> 2010 on CircleID: >> >> http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/ >> >> See his comment (#2) on that page, which I'll reproduce in full: >> >> "Jeff, Here are a few of the things that worry me about all of this: >> >> 1. No ADR provider is under contract with ICANN. There is thus >> absolutely no accountability. Given NAF's history with the >> authorities in connection with their having fixed the credit card >> arbitration process, one wonders why this situation remains. >> >> 2. Concerning statistics (mostly about NAF) have come out regarding >> repetative appointments of a select few panelists. >> >> 3. On prior occasions I have asked for corrections in NAF decisions >> and have been told that it was not possible, that they would not >> request panelists to do so, and they objected to any attempt on my >> part to raise the issue directly with the panelists - even if copying >> the other side in any correspondence. >> >> 4. I can understand the desire not to have matters continued post >> decision - such would be contrary to the spirit of the UDRP. However, >> to undertake a change to decisions without publication and an audit >> function is simply unheard of. In the US as you know, when a court >> alters an opinion it publishes notices of the modification and it is >> the judges who are doing the modification. Here there is no >> indication at all that any panelist made the request and no public >> record keeping of the change. >> >> Overall, the ADR providers are a law unto themselves. There is no >> appeal and no accountability. WHile 4(k) allows a post-UDRP legal >> action, no care was taken when writing the UDRP to investigate whether >> a proper cause of action exists for such a proceeding in the "Mutual >> Jurisdiction". There are no standards for panelists (one is a traffic >> judge with no IP experience at all). Appointments are not >> statistically random. They create their own supplemental rules. They >> actively and selectively promote lines of decisions (e.g. WIPO's Panel >> Guidelines). In the case of NAF they are (with reason) suspected of >> having inside clerks ghost-write opinions for delivery to the >> panelists. Now this. We are in a race to the bottom here. While >> overall I would say that the vast majority of decisions are correctly >> decided, it is worrying that registrants are forced by contract to >> participate in such a system. The proper test for a judicial system >> is not whether it gets it right in the easy cases but rather it has >> adequate protections to ensure that the difficult ones are treated >> properly. " >> >> Given that, I thought it appropriate to ask that particular question, >> so that the providers can let us know whether that ghost-writing is >> actually happening or not. Frankly, I found it disturbing that it >> might be happening when I first learned of that possibility back in >> 2010, and if it's happening, then the rules need to be strengthened. >> >> B] With regards to the "Effect of Court Proceedings" question (page 15 >> of the redline document), we know that WIPO is aware of court >> proceedings after UDRPs (see: >> http://www.wipo.int/amc/en/domains/challenged/ , although they've >> failed to update that regularly, despite new cases being brought to >> their attention). Perhaps something similar exists for the URS. If the >> providers aren't aware of it (and you'd think they would be, given >> their "suspension' nameservers would be changed by the registry >> operator to reflect a court proceeding), then the registry operators >> should be asked (since they'd probably be ordered to change the >> nameservers back). >> >> C]. With regards to the final question on page 16 (running on to page >> 17), Sub Teams shouldn't be making "conclusions" on anything >> (decisions are made by the entire membership, not subteams). As to the >> merits/scope of that question, it's not been all rainbows and unicorns >> at NAF. I think it's important to know whether they've actually >> learned from their past, and adopted changes to reflect the concerns >> in those serious legal matters. If they haven't, that it's just been >> "business as usual" for the domain-related cases (after no longer >> doing consumer credit disputes), then that has policy implications. If >> we as a PDP simply go with the answers already submitted, that's fine >> with me, but I was bending over backwards to give them a chance to >> improve their answers. >> >> Sincerely, >> >> George Kirikos >> 416-588-0269<tel:4165880269> >> http://www.leap.com/ >> >> >> >> >> >> >> >> >> >> On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <ariel.liang(a)icann.org<mailto:ariel.liang@icann.org>> wrote: >>> Hello everyone, >>> >>> >>> >>> In preparation for tomorrow’s WG call, please be so kind to find attached >>> the redline document of the proposed questions to URS Providers. The >>> document includes comments/suggestions from WG members, and the >>> input/feedback to these comments/suggestions from the Providers Sub Team >>> (received by the deadline at 12:00 UTC on Tuesday, 24 April). >>> >>> >>> >>> Please be so kind to review this redline document prior to the call tomorrow >>> (Wednesday, 25 April at 12:00 UTC). Thanks again to those who have commented >>> and provided input! >>> >>> >>> >>> Best Regards, >>> >>> Mary, Julie, Ariel, and Berry >>> >>> >>> >>> >>> >>> From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Julie Hedlund >>> <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> >>> Date: Friday, April 20, 2018 at 2:43 PM >>> To: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> >>> Subject: [gnso-rpm-wg] Proposed agenda for RPM Working Group call on 25 >>> April 2018 at 1200 UTC >>> >>> >>> >>> Dear RPM PDP WG members, >>> >>> >>> >>> Per the WG Co-Chairs, here is the proposed agenda for the Working Group call >>> Wednesday, 25 April 2018, scheduled for 1200 UTC (note earlier time – >>> calendar invite will be sent via separate email): >>> >>> >>> >>> Proposed Agenda: >>> >>> Roll call and updates to Statements of Interest >>> Status of Questions for Practitioners >>> Finalize Questions for Providers >>> Notice of agenda for 02 May meeting >>> >>> >>> >>> Best regards, >>> >>> Mary, Julie, Ariel and Berry >>> >>> >>> >>> >>> >>> >>> _______________________________________________ >>> gnso-rpm-wg mailing list >>> gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> >>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500<tel:4048156500>, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

2 1

Redline Document: Proposed Questions to URS Providers
by Ariel Liang April 28, 2018

April 28, 2018

Hello everyone, In preparation for tomorrow’s WG call, please be so kind to find attached the redline document of the proposed questions to URS Providers. The document includes comments/suggestions from WG members, and the input/feedback to these comments/suggestions from the Providers Sub Team (received by the deadline at 12:00 UTC on Tuesday, 24 April). Please be so kind to review this redline document prior to the call tomorrow (Wednesday, 25 April at 12:00 UTC). Thanks again to those who have commented and provided input! Best Regards, Mary, Julie, Ariel, and Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Friday, April 20, 2018 at 2:43 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 25 April 2018, scheduled for 1200 UTC (note earlier time – calendar invite will be sent via separate email): Proposed Agenda: 1. Roll call and updates to Statements of Interest 2. Status of Questions for Practitioners 3. Finalize Questions for Providers 4. Notice of agenda for 02 May meeting Best regards, Mary, Julie, Ariel and Berry

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Re: [gnso-rpm-wg] Draft Letter on UDRP & URS Utilization of WHOIS-Derived Registrant Data (was Response from the Co-Chairs RE: Proposal to Shift URS review to Phase II)
by Ariel Liang April 27, 2018

April 27, 2018

Dear All, Per Brian’s suggestions, staff added the provisions in UDRP Policy and Rules, as well as revised the chart title and legend. Please find the revised version attached. Best Regards, Mary, Julie, Ariel, and Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of "BECKHAM, Brian" <brian.beckham(a)wipo.int> Date: Friday, April 27, 2018 at 2:30 PM To: "Corwin, Philip" <pcorwin(a)verisign.com>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: Re: [gnso-rpm-wg] Draft Letter on UDRP & URS Utilization of WHOIS-Derived Registrant Data (was Response from the Co-Chairs RE: Proposal to Shift URS review to Phase II) Thanks Phil, I perhaps should have said in my original message that I tried to stay within the spirit of the draft letter, merely editing with a view to streamlining it. Like you, I am somewhat agnostic about sending it. To that end, I would add that as a UDRP provider, I have raised this with ICANN (including legal) and several registrars, and do not see any reason there *should be* substantial operational hurdles on the provider side. (To be clear, in saying this, I am not offering an opinion as to any broader enforcement concerns or considerations.) Hope that helps give some context. Brian On 27 April 2018 at 20:04:41 GMT+2, Corwin, Philip <pcorwin(a)verisign.com> wrote: Trying this again – I received feedback that the attachment I sent did not have the edits accepted. 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: Corwin, Philip Sent: Friday, April 27, 2018 1:56 PM To: 'brian.beckham(a)wipo.int' <brian.beckham(a)wipo.int>; 'gnso-rpm-wg(a)icann.org' <gnso-rpm-wg(a)icann.org> Subject: RE: Draft Letter on UDRP & URS Utilization of WHOIS-Derived Registrant Data (was Response from the Co-Chairs RE: Proposal to Shift URS review to Phase II) Thanks for the constructive feedback, Brian. As your edits of the original letter are so extensive I have taken the liberty of accepting them in the attached document, so that WG members can read it more easily. I am personally indifferent to whether we send the original version, your rewrite, or something in between, and encourage feedback on that from WG members – as well as on the threshold question of communicating on this subject with the GNSO Council which supervises our work. Again, the intent of the draft letter is not to dictate any particular result vis-à-vis contracted parties but to make sure that those who are discussing resolution of GDPR/WHOIS issues are fully aware of the ways in which relevant UDRP and URS provisions reference access to and use of registrant data in the administration of those dispute processes. As for your suggested additions to the chart, I would expect staff to take note and update the chart accordingly, and then circulate the revised version to WG members. Best, Philip 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: BECKHAM, Brian [mailto:brian.beckham@wipo.int] Sent: Friday, April 27, 2018 11:38 AM To: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>; Corwin, Philip <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>> Subject: [EXTERNAL] RE: Draft Letter on UDRP & URS Utilization of WHOIS-Derived Registrant Data (was Response from the Co-Chairs RE: Proposal to Shift URS review to Phase II) Phil, all, I have noted a number of exchanges in this thread, including those by Jeff Neuman and others raising the need for sending such a letter. Without wishing to weigh in on the decision to send a letter or not, if a letter is sent, I propose the edits in the attached (it is easier to read in “final”). (I hope this is ok, and I suppose the document permissions were inadvertently tagged as “This document has been marked as final to discourage editing.” ; ) As to the chart, on the UDRP side, it should include: - UDRP para 2 - UDRP para 4(b)(i) – (iv) - UDRP para 4(c)(i) – (iii) - UDRP para 4(f) - UDRP para 7 - UDRP para 8(a) - the full text of UDRP Rules para 2 (i.e., not skipping the obligations preamble) - UDRP Rules para 4(b) - UDRP Rules para 17 (a)(i) – (vii) If the reference to UDRP Rules para 6(a) and (d) are retained, UDRP Rules para 6(c) and (f) should be added. I also suggest removing the term “PII” from both the chart title and the legend. Thanks, Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Corwin, Philip via gnso-rpm-wg Sent: Thursday, April 26, 2018 9:58 PM To: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Draft Letter on UDRP & URS Utilization of WHOIS-Derived Registrant Data (was Response from the Co-Chairs RE: Proposal to Shift URS review to Phase II) Importance: High WG members: Following up on the co-chairs email of April 6th, in which we stated-- In regard to the ability of URS and UDRP providers to continue to have access to the data elements necessary to fulfill their dispute resolution provider (DRP) roles, it is our intent to prepare a draft letter to ICANN’s CEO noting that such continued access for DRPs is essential to maintaining these non-judicial alternatives for addressing trademark infringement in the DNS, and requesting that ICANN raise this important matter in its continuing discussions with EU Data Protection Authorities. We will work with staff to prepare this draft letter and then share it with WG members for review and comment, after which we will coordinate with Council Leadership and the WG Liaison regarding transmission of a final text to ICANN management. – Kathy and I have now prepared a draft letter to the GNSO Council, for transmission onward to ICANN management and other parties, for your review. It addresses the subject of the relationship of UDRP and URS administration based upon registrant data obtained from WHOIS records. In preparing this letter we relied extensively on the attached listing of UDRP Policy and Rules and URS Rules and Procedure that mention or are related to registrant data and WHOIS. Please review this attached letter at your earliest opportunity and post any suggested revisions or additions to the WG email list. As initiation of GDPR enforcement is now less than one month away time is of the essence in transmitting this information. Thank you and best regards, Philip & Kathy 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: Corwin, Philip Sent: Friday, April 06, 2018 11:03 AM To: 'john.mcelwaine(a)nelsonmullins.com' <john.mcelwaine(a)nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>>; 'gnso-rpm-wg(a)icann.org' <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Response from the Co-Chairs RE: Proposal to Shift URS review to Phase II Dear John: Thank you for your submission regarding a variety of proposed changes to this Working Group’s Charter. Our understanding from discussions with staff is that, while there is no set requirement for the level of support within a WG required to request that GNSO Council consider a Charter revision, such revisions are relatively rare and have in the past been supported by a substantial majority of WG members in the absence of significant opposition prior to transmission to Council for its consideration. We therefore strongly encourage all WG members to carefully review your proposal and, regardless of whether one supports or opposes it, to provide some feedback to the full WG email list so that we can begin to gauge overall support. Such email discussion can be preliminary to a full WG oral discussion on a call sometime in late April or early May, if there are indications of substantial support within the WG and a desire to engage in further discussion. The full WG will resume its regular Wednesday calls by mid-April (we anticipate April 18), after the URS Documents, Practitioners and Providers sub-teams have completed their current work. We also note that your proposal raises multiple issues, including: • Amendment of the WG Charter to move the URS review and recommendations to Phase II • Amendment of the WG Charter to define issues that must, may, and may not be addressed • Adjustment of the WG Charter to provide additional guidance on the scope of URS and UDRP Review • Adjustment of the WG leadership structure for Phase II • Potential pause in the start of Phase II keyed to GDPR impact understanding These are all major issues and we encourage WG members to comment on all of them. Finally, regardless of whether there is substantial support within the WG for any of the elements of your proposal, we agree that the impending enforcement of GDPR raises substantial WHOIS data access issues for trademark owners and for URS and UDRP dispute resolution providers. The issues for trademark owners are currently being discussed within the full ICANN community regarding interim and final compliance models, the latter involving accreditation and tiered data access. In regard to the ability of URS and UDRP providers to continue to have access to the data elements necessary to fulfill their dispute resolution provider (DRP) roles, it is our intent to prepare a draft letter to ICANN’s CEO noting that such continued access for DRPs is essential to maintaining these non-judicial alternatives for addressing trademark infringement in the DNS, and requesting that ICANN raise this important matter in its continuing discussions with EU Data Protection Authorities. We will work with staff to prepare this draft letter and then share it with WG members for review and comment, after which we will coordinate with Council Leadership and the WG Liaison regarding transmission of a final text to ICANN management. Best regards, Philip & Kathy 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-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of John McElwaine Sent: Thursday, April 05, 2018 9:55 PM To: gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [EXTERNAL] [gnso-rpm-wg] Proposal to Shift URS review to Phase II Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 1. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 1. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 1. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 1. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: * Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window * Should monetary damages be awarded? * Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? * Should injunctive relief be available? * Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 1. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: * Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). * Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). * Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). * Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). * Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 1. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 1. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: * Procedure for UDRP/URS: * Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. * Possibility that the Language of the URS proceeding cannot be determined. * Procedure for URS: * Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. * Possibility that URS complainants cannot know the language of a possible response. * Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. * UDRP Element 2 / URS: * Cannot argue that the registrant is not commonly known by the Domain Name at issue. * Cannot determine if the registrant has been authorized by the Trademark holder. * Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. * Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. * UDRP Element 3: * Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). * Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. * Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). * Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 1. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-0…<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_syste…>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. [mage removed by sender. Image removed by sender. http://www.nelsonmullins] JOHN C. MCELWAINE PARTNER john.mcelwaine(a)nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com> LIBERTY CENTER | SUITE 600 151 MEETING STREET | CHARLESTON, SC 29401 T 843.534.4302 F 843.722.8700 101 CONSTITUTION AVENUE, NW | SUITE 900 WASHINGTON, D.C., 20001 T 202.689.2939 F 202.689.2862 NELSONMULLINS.COM[nelsonmullins.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.nelsonmullins.com&d…> VCARD[nelsonmullins.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.nelsonmullins.com_p…> VIEW BIO[nelsonmullins.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.nelsonmullins.com_p…> Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. 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Re: [gnso-rpm-wg] [Ext] Re: REMINDER re: Nominations for RPM Working Group Co-Chair
by George Kirikos April 27, 2018

April 27, 2018

Hi folks, One of the observers of this PDP asked that the following case be shared (when he attempted to send the email to the entire mailing list, it didn't go through, due to not being a "member"). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Apr 27, 2018 at 9:19 AM, Roberto Manno <r.manno(a)weblegal.it> wrote: > Dear All, > > I hope you may find of interest a recent case decided by the Rome Court, > who found in favor of registrant after the .it dispute provider ruled the > smallbiz.it domain name was registered/used in bad faith. > > I represented the registrant in both udrp and judicial case, and was > extremely concerned by the outcome of the Italian udrp, especially > considering that few month later the same UDRP provider ruled in favor of > generic domain name trading and warehousing. > > I’m going to send the decision also to WIPO. > I also attach an article in English made by my colleague mrs Selena > Travaglio. > [image: Documento Word] > Traduzione EN sentenza I grado… > > <https://docs.google.com/file/d/1RcTjhxwQgg9402qmFyUcdtdhdnOmZW-_/edit?usp=d…> > [image: Documento Word] > Article - EN.docx > > <https://docs.google.com/file/d/1Se0PsRMaCF-cE0TI4f6LUhSW7PwWXyXV/edit?usp=d…> > > Best regards > > Roberto Manno. > > > Il giorno ven 27 apr 2018 alle 14:53 Nahitchevansky, Georges < > ghn(a)kilpatricktownsend.com> ha scritto: > >> George K >> >> With all due respect, the fact that a party settles a case does not mean >> that their case was deficient, that the UDRP decision was faulty or >> deficient, or that the appealing respondent or complainant had a >> meritorious case. Any attorney will tell you that parties settle cases for >> any number of reasons. These often include business decisions based on the >> cost, time and effort to be expended in a litigation. The mere fact that a >> brand owner paid some money to the losing Respondent means nothing about >> the merits. It may just mean that instead of spending gobs of money on a >> litigation to get a judgment against a party to only get the domain name >> (and never be able to collect monetary damages, or possible attorneys fees, >> because the defendant is shady or essentially judgment proof), that brand >> owner simply decides as a business decision to pay a significantly lower >> amount to get the matter resolved quickly. Put another way, there are many >> cases that involve appeals that are no more t >> han hold up suits that get resolved because the company facing the suit >> does not want to spend the time and money on a case that they know will >> cost them way more than simply settling. Similarly, respondents who lose >> and get into a litigation sometimes settle because they know they are going >> to face significant damages, the possible seizing of their portfolio of >> domain name to satisfy a judgment and the time and cost of litigating (in >> other words, they appeal a UDRP and then face a party who will go the >> distance to prove their rights). That is not say that there aren't >> meritorious cases, but to read something into a settlement is more or less >> a pointless exercise and involves speculation as to what motivated the >> parties to settle. Greg's point as to adjudicated orders and decisions is >> correct. They have way more probative value than a settlement >> >> Georges Nahitchevansky >> Kilpatrick Townsend & Stockton LLP >> The Grace Building | 1114 Avenue of the Americas | New York, NY >> 10036-7703 >> <https://maps.google.com/?q=1114+Avenue+of+the+Americas+%7C+New+York,+NY%C2%…> >> office 212 775 8720 | fax 212 775 8820 >> ghn(a)kilpatricktownsend.com | www.kilpatricktownsend.com >> >> >> -----Original Message----- >> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of >> George Kirikos >> Sent: Friday, April 27, 2018 7:50 AM >> To: Greg Shatan <gregshatanipc(a)gmail.com> >> Cc: gnso-rpm-wg(a)icann.org >> Subject: Re: [gnso-rpm-wg] [Ext] Re: REMINDER re: Nominations for RPM >> Working Group Co-Chair >> >> Greg: >> >> A "consent order" is still an order (just like a "red car" is still a >> car), and a "consent judgment" is still a judgment even if it's the result >> of a settlement. Most cases are settled. When a TM holder wins a UDRP >> complaint, but then is challenged in court, the outcome of that challenge >> is certainly of interest. Take a look at the outcomes here: >> >> 1. Soundstop.com -- Domain Asset Holdings (domain owner) kept the domain >> >> 2. AustinPain.com -- "Judgment and Permanent Injunction" -- domain owner >> keeps the domain, and also gets $25,000 - "the NAF Order in the UDRP >> proceeding is hereby set aside" >> >> 3. SDT.com -- Telepathy (domain owner) keeps the domain, and gets >> $50,000 paid to it by the initiator of the UDRP; "Consent Judgment and >> Permanent Injunction"; "Accordingly, it is hereby Ordered and Adjudged" >> >> 4. Moobitalk.com - you concede >> >> Folks would be misled by simply having the UDRP decisions appear at >> NAF/WIPO, making it seems as if they're the final outcome, the final word, >> when they're not. By knowing these cases exist, others can go to the actual >> pleadings, and learn something (in particular, that the UDRP decisions >> which were rendered are likely highly deficient, given the judicial >> outcomes). >> >> Furthermore, WIPO has *already* listed a case, the one for LawSociety.com: >> >> S.H., Inc. v. The Law Society, Case No. CV10-0248MJP, United States >> District Court for the Western District of Washington, July 19, 2010 >> >> http://www.wipo.int/export/sites/www/amc/en/docs/courtorderd2009-1520.pdf >> >> which was *also* the result of a settlement (a consent order) [boom goes >> the dynamite -- I really need sound effects for these emails!]. >> That precedent further reinforces that everything you said is wrong >> --- to be consistent with their long-established precedent, they should >> be adding all the cases. >> >> Nice try, though. :-) >> >> Q.E.D. >> >> George Kirikos >> 416-588-0269 >> http://www.leap.com/ >> >> >> On Fri, Apr 27, 2018 at 1:04 AM, Greg Shatan <gregshatanipc(a)gmail.com> >> wrote: >> > Soundstop, Austin Pain and SDT are all settlements. The WIPO page is >> > entitled "Select UDRP-related Court Cases," which they specify as >> > "orders and decisions." As settlements, they really are neither court >> > orders or decisions. The court just rubber-stamped the private >> > agreement of the parties. There's nothing wrong with that, but >> > there's no judicial value in these actions. They provide nothing a >> > third party could rely on, set no precedent, apply no law and make no >> law. >> > >> > These are not "successful challenges" in the sense that a court >> > actually considered the merits of the case and rendered a decision. >> > They may be favorable settlements to the respondents, but they do not >> > represent success in court in the way that a "case" does. (In law >> > school, when students are "reading cases" in law school, they are >> > reading decisions; when a lawyer says she has a "case on this point," >> > she is referring to a decision.) A s such I wouldn't consider these >> "cases" at all for this purpose. >> > >> > Also none of these are relevant to "the other side of the coin, abuse >> > of the process, reverse domain name hijacking, and the court cases >> > that are required to achieve justice." Hopefully, nobody who read >> > this thread actually thought that these (non)cases represented any of >> > those things, or thought that WIPO was biased and engaging in a >> > cover-up by "failing" to post these settlements. (This seemed to be >> > the undercurrent of the argument, but perhaps I'm reading too much >> > into it.) >> > >> > In other words, WIPO did the right thing with regard to Soundstop, >> > Austin Pain and SDT. >> > >> > Moobitalk is different -- it is an actual court decision (indeed, two >> > court decisions), which I think would be of some interest to those >> > looking for court decisions reflecting the outcome of judicial >> challenges to UDRP cases. >> > In this instance, I would join George in requesting (respectfully, in >> > my >> > case) that WIPO post the decisions in this case on the "Select >> > UDRP-related Court Cases" page. >> > >> > Again I should note that Moobitalk doesn't appear to demonstrate "the >> > other side of the coin, abuse of the process, reverse domain name >> > hijacking, and the court cases that are required to achieve justice," >> > and also note that none of this is relevant to Brian's fitness or >> > appropriateness to serve as Co-Chair of this WG. For that purpose, >> this is a "frolic and detour." >> > >> > Greg >> > >> > >> > >> > On Tue, Apr 24, 2018 at 3:30 PM, claudio di gangi >> > <ipcdigangi(a)gmail.com> >> > wrote: >> >> >> >> George, all, >> >> >> >> Personally, I don't believe WIPO is doing anything wrong by not >> >> publishing your specific list of post-UDRP cases, which is not a >> >> requirement for Providers. From my perspective, it looks like they >> >> have posted some of these cases as a nice gesture to the community. >> >> >> >> The webpage on which these cases are published clearly states these >> >> are "select" cases and there is no intent to create a comprehensive, >> >> updated running list of all post-UDPR actions. >> >> >> >> Moreover, in taking a quick glance at some of the cases you >> highlighted: >> >> >> >> <Soundstop.com> - the court case settled; it doesn't appear the court >> >> issued a holding that is generally applicable to other UDRP >> proceedings. >> >> >> >> <sdt.com> - it looks like the UDRP panel terminated the proceeding to >> >> let the court case run its course. >> >> >> >> <Moobitalk.com> - the decision of the appeals court was based on a >> legal >> >> principle (territoriality) that is not a required element under the >> UDRP. >> >> This seems to be a relatively unique case and publishing this >> >> decision may confuse some readers in terms of the general >> >> applicability of UDRP jurisprudence. >> >> >> >> --- >> >> >> >> In terms of Brian's nomination, I am very grateful that he is willing >> >> to serve and dedicate the time needed to take on this role. As >> >> mentioned by Zak and other's, I believe he is preeminently qualified >> >> and has the natural leadership skills that will greatly benefit our >> team. >> >> >> >> Hope this helps. >> >> >> >> Best regards, >> >> Claudio >> >> >> >> >> >> >> >> On Tue, Apr 24, 2018 at 12:47 PM, George Kirikos <icann(a)leap.com> >> wrote: >> >>> >> >>> With regards to Brian Beckham of WIPO being one of the co-chairs, >> >>> I'm relatively indifferent, as long as the co-chairs comply with the >> >>> working group guidelines which place constraints on their behaviour >> >>> (i.e. neutrality, not pushing their own agenda, etc.). It's meant to >> >>> be an administrative/clerical task, essentially. >> >>> >> >>> I think Brian would go a long way towards demonstrating his >> >>> commitment towards that required neutrality if he would get WIPO to >> >>> update their "Court Challenged Cases" page at: >> >>> >> >>> http://www.wipo.int/amc/en/domains/challenged/ >> >>> >> >>> with cases that have been **repeatedly** brought to their attention >> >>> in the past, including: >> >>> >> >>> 1. Soundstop.com -- >> >>> >> >>> http://domainnamewire.com/2016/07/21/mike-mann-overturns-udrp-decisi >> >>> on-court/ https://domainnamewire.com/wp-content/soundstop-1.pdf >> >>> >> >>> 2. AustinPain.com -- >> >>> >> >>> http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov. >> >>> uscourts.cod.147273.23.0.pdf >> >>> >> >>> 3. SDT.com -- >> >>> >> >>> http://domainnamewire.com/2015/07/22/50000-penalty-for-filing-a-friv >> >>> olous-udrp/ >> >>> https://domainnamewire.com/wp-content/SDT-settlement1.pdf >> >>> >> >>> 4. Moobitalk.com -- >> >>> >> >>> http://www.lexology.com/library/detail.aspx?g=5899d5f9-3bbc-416e-a9a >> >>> 5-7233a147b62c >> >>> >> >>> https://www.legalis.net/jurisprudences/cour-dappel-de-paris-pole-5-c >> >>> h-1-arret-du-8-novembre-2016/ >> >>> (actual decision) >> >>> >> >>> It looks bad on WIPO's part that all of these successful challenges >> >>> are not being reflected on that page. WIPO is quick to assert >> >>> "record cybersquatting" exists, yet they fail to mention the other >> >>> side of the coin, abuse of the process, reverse domain name >> >>> hijacking, and the court cases that are required to achieve justice. >> >>> If Brian would get that page updated before an election, that would >> be wonderful. >> >>> >> >>> Sincerely, >> >>> >> >>> George Kirikos >> >>> 416-588-0269 >> >>> http://www.leap.com/ >> >>> _______________________________________________ >> >>> gnso-rpm-wg mailing list >> >>> gnso-rpm-wg(a)icann.org >> >>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >> >> >> >> >> >> >> >> _______________________________________________ >> >> gnso-rpm-wg mailing list >> >> gnso-rpm-wg(a)icann.org >> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >> > >> > >> _______________________________________________ >> gnso-rpm-wg mailing list >> gnso-rpm-wg(a)icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >> >> ________________________________ >> >> Confidentiality Notice: >> This communication constitutes an electronic communication within the >> meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section >> 2510, and its disclosure is strictly limited to the recipient intended by >> the sender of this message. This transmission, and any attachments, may >> contain confidential attorney-client privileged information and attorney >> work product. If you are not the intended recipient, any disclosure, >> copying, distribution or use of any of the information contained in or >> attached to this transmission is STRICTLY PROHIBITED. Please contact us >> immediately by return e-mail or at 404 815 6500, and destroy the original >> transmission and its attachments without reading or saving in any manner. >> >> ________________________________ >> >> ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal >> tax advice contained in this communication (including any attachments) is >> not intended or written to be used, and cannot be used, for the purpose of >> (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, >> marketing or recommending to another party any transaction or matter >> addressed herein. >> _______________________________________________ >> gnso-rpm-wg mailing list >> gnso-rpm-wg(a)icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >> > -- > >

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Re: [gnso-rpm-wg] [Ext] RE: Redline Document: Proposed Questions to URS Providers
by Ariel Liang April 26, 2018

April 26, 2018

Hello Paul and Phil, Thanks, Paul, for the suggested questions. As Phil mentioned, these questions may have already been covered by other proposed questions: Examiner Q3: (To MFSD) What is your conflict of interest policy for Examiners? How do you make the Examiners aware of their obligation to be impartial and independent? Q4: (To MFSD) How do your Examiners confirm their impartiality and independence? These two questions may have covered your questions: 3. Do you take steps to ensure against bias or conflict of interest when selecting a panelist for any URS disputes (y.n); 4. If yes, please briefly explain the steps taken. In addition. Forum and ADNDRC have already provided responses to this topic, hence the proposed questions are directed to MFSD: Forum: Supplemental Rules: 10. Impartiality and Independence (b) A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to the following: (i) The Examiner has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts; (ii) The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association; (iii) The Examiner, individually or as a fiduciary, or the Examiner’s spouse or minor child residing in the Examiner’s household, has a direct financial interest in a matter before the Examiner; (iv) The Examiner or the Examiner’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (1) Is a party to the proceeding, or an officer, director, or trustee of a Party; or (2) Is acting as a lawyer or representative in the proceeding. From: "Corwin, Philip" <pcorwin(a)verisign.com> Date: Thursday, April 26, 2018 at 12:02 PM To: "Paul(a)law.es" <Paul(a)law.es>, Ariel Liang <ariel.liang(a)icann.org>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [Ext] RE: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers Paul: I can’t speak to the draft questions being prepared to Practitioners as I have had less involvement with that Sub-team, but I believe that the list of draft questions that will be going to Providers next week already covers these areas. I’m hereby asking staff to provide us with the accepted or still under discussion questions that focus on the same areas as your suggested questions so that we can compare them and determine whether what we already have is sufficient . These are valid areas of inquiry but we don’t want to be asking providers what is essentially the same question twice. Philip 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-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, April 25, 2018 10:09 AM To: Ariel Liang <ariel.liang(a)icann.org>; gnso-rpm-wg(a)icann.org Subject: [EXTERNAL] Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers Julie and all, First, my apologies for not responding yesterday but this was not received until after business hours in Barcelona. I propose to add the following questions to BOTH the practitioners AND ADR questions. The questions are intended to understand the process of ensuring against bias and conflicts of interest in the context of URS proceedings. To Providers: 1. Do you assign URS disputes to panelists on a random basis (y/n) 2. If no please briefly describe the process undertaken to select panelists in any given URS dispute 2. Do you take steps to ensure against bias or conflict of interest when selecting a panelist for any URS disputes (y.n) 3. If yes, please briefly explain the steps taken From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Ariel Liang <ariel.liang(a)icann.org<mailto:ariel.liang@icann.org>> Date: Tuesday, April 24, 2018 at 5:32 PM To: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers Hello everyone, In preparation for tomorrow’s WG call, please be so kind to find attached the redline document of the proposed questions to URS Providers. The document includes comments/suggestions from WG members, and the input/feedback to these comments/suggestions from the Providers Sub Team (received by the deadline at 12:00 UTC on Tuesday, 24 April). Please be so kind to review this redline document prior to the call tomorrow (Wednesday, 25 April at 12:00 UTC). Thanks again to those who have commented and provided input! Best Regards, Mary, Julie, Ariel, and Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Date: Friday, April 20, 2018 at 2:43 PM To: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] Proposed agenda for RPM Working Group call on 25 April 2018 at 1200 UTC Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 25 April 2018, scheduled for 1200 UTC (note earlier time – calendar invite will be sent via separate email): Proposed Agenda: 1. Roll call and updates to Statements of Interest 2. Status of Questions for Practitioners 3. Finalize Questions for Providers 4. Notice of agenda for 02 May meeting Best regards, Mary, Julie, Ariel and Berry _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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