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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Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers
by Paul Keating April 26, 2018

April 26, 2018

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> on behalf of Ariel Liang <ariel.liang(a)icann.org> Date: Tuesday, April 24, 2018 at 5:32 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers > Hello everyone, > > In preparation for tomorrow¹s 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 > > > _______________________________________________ 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: Actions & Notes: RPM PDP WG 25 April 2018
by Julie Hedlund April 26, 2018

April 26, 2018

Hi Brian, Thank you very much and this is noted. Kind regards, Julie From: "BECKHAM, Brian" <brian.beckham(a)wipo.int> Date: Thursday, April 26, 2018 at 6:15 AM To: Julie Hedlund <julie.hedlund(a)icann.org>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [Ext] RE: Actions & Notes: RPM PDP WG 25 April 2018 Hi Julie, To hopefully move us forward, all of the comments from me can be deleted (i.e., they were discussed on the call). One item did need an update, which was agreed on the call. Namely, Examiner Determination Q3 should be reworded to something like: Noting that URS Rules para 13(a) provide that an examiner may “make a Determination …in accordance with …any rules and principles of law that it deems applicable”, are you aware of instances where an Examiner has invoked substantive criteria beyond those articulated in the URS? Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Hedlund Sent: Wednesday, April 25, 2018 7:07 PM To: gnso-rpm-wg(a)icann.org Subject: [gnso-rpm-wg] Actions & Notes: RPM PDP WG 25 April 2018 Dear All, Please see below the action items and brief notes captured by staff from the Working Group call held on 25 April 2018 (1200 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the transcript or recording. The recording, transcript, Adobe Connect chat, and attendance records are posted on the wiki. The referenced document is attached. Best Regards, Julie Julie Hedlund, Policy Director Action Items: Questions for URS Practitioners: The Sub Team will finalize the questions by Monday, 30 April. Staff will create a survey and send to the Practitioners. Questions for Providers: Staff will close the document for review by Friday, 27 April and send it to the Sub Team for a final review. The Sub Team will complete a review of the questions by COB Monday, 30 April. Staff will send the questions to the Providers. Notes: 1. Questions for URS Practitioners: -- Question 3: Edit from George re: Question three – Reword as two separate questions – filing and response fees. -- The Sub Team will finalize the questions by Monday, 30 April. 2. Questions for URS Providers: -- Responses from most Providers that they can respond in 30 days for most questions, and 45-60 days for questions that require a review of decisions. -- Close the document for review by this Friday, 27 April and then send to the Providers. Review of the Questions: Communications: Question 2 – changes accepted. Question 5 – new question b captures the concern from Brian Beckham, and c addresses George’s concern. Question 6 – changes accepted. Question 7 – changes accepted. Complaints: Question 4 – Correct the grammar; providers may need to consult with examiners. Question stays as amended. It can stay in and that we understand the limitations around it. Notice of Complaint and Locking of Domain Question 5: This has been moved to another section, question 2 in Communications: Rule 4(c): "The electronic copy of the Notice of Complaint may be provided via email or an emailed link to an online platform requiring users to create an account." It can be deleted here. George and Brian have accepted the edits. The Response: Question 1: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 4: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 11: Change to: “Have you received feedback that the Response period is inadequate?” Question 14: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 15: DELETE. Concerned about the definition of “domain investors”. It will be quite difficult if not impossible to get this information from providers. Doesn’t seem much utility in the answers. Also may be able to get some of this information from determination data being gathered by Rebecca. Examiner: Question 12b: No case of an abusive complaint – no entry in the abuse case database – so is this question still necessary? Leave it in because we want to know if they have a policy. Revise to include the URDP concept of RDNH. Rewrite to ask whether the provider has a policy of allowing someone to be an examiner if they also represent complainants. Question 12c: is suggesting that part c of the question isn’t needed since we already have responses from the providers. But there is a difference between how many examiners are on the roster and how many are actually deciding decisions. Edit to make this a more targeted question regarding the size of the examiner pool, whether random assignment is used, etc. by COB 25 April. Question 13: Providers would not know the status of their examiners. Examiners may not be willing or able to say either. Also seems to be suggesting that you can’t represent both respondents and complainants. Not sure what is the point of the question. ACTION: Rephrase to focus on panel selection policy to encourage diversity in trademark practice. Suggestion: “What steps, if any, do you take to ensure that your Examiners have a diversity of relevant experience, e.g. have experience representing respondents as well as complainants?" Language: Question 4: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. In Person Hearings: DELETE. Question doesn’t make sense. Default: Question 1: Seems to ask providers how they do something for a procedure over which they have no control. ACTION: Take it back to the Sub Team to consider deleting. Question 2: DELETE. We already have this information from the case review for both within 6 months and after 6 months. Question 3: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in Examiner Determination: Question 3: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in, but include Brian’s reformulation: “Noting URS Rules 13(a) that Examiners may ‘make a Determination …in accordance with …any rules and principles of law that it deems applicable.’ Are you aware whether any case that the Examiner has invoked this rule?” Question 8: Possibly duplicative. ACTION: Take it back to the Sub Team to consider deleting, or rephrase it. Question 10: DELETE. Provider can’t know what the examiner assigns to others in their office. But could rephrase if they are aware or provide any suggested language or clerical help to examiners. George will send revised language. Remedies: Question 4: This is seeking an opinion; keep it in. Question 5: DELETE. Keep it for the WG. Question 6: Leave it in, but add: “If yes, what action did you take on receiving the notice or to resolve the query?” Effect of Court Proceeding. Question 1: Ask David McAuley to send revised language. Done: “To your knowledge, have there been instances of legal proceedings relating to URS proceedings and, if so, what effect did such instance(s) have?” Others: Question 3: Leave it in, and ask, “If so can you provide the type of information or data requested..” Also, combine with Question 4. Question 4: See above. Combine with question 3. Question 6: Policy question. Unless others have suggestions for rewriting it, the question will be deleted. Question 7: DELETE. Determined to be out of scope. Or, we could ask if Providers support sanctions against abusers of the process whether Complainant or Respondent. Also, could ask all Providers if they clearly disclose potential conflicts? Or could ask FORUM specifically. Hold off decision on this call and discuss further, although leave it out of the list of questions for now. [wipo.int] Powering change: Women in innovation and creativity World Intellectual Property Day 2018 April 26 wipo.int/ipday[wipo.int] #worldipday World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. If you have received this e-mail by mistake, please immediately notify the sender and delete this e-mail and all its attachments. Please ensure all e-mail attachments are scanned for viruses prior to opening or using.

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Actions & Notes: RPM PDP WG 25 April 2018
by Julie Hedlund April 26, 2018

April 26, 2018

Dear All, Please see below the action items and brief notes captured by staff from the Working Group call held on 25 April 2018 (1200 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the transcript or recording. The recording, transcript, Adobe Connect chat, and attendance records are posted on the wiki. The referenced document is attached. Best Regards, Julie Julie Hedlund, Policy Director Action Items: Questions for URS Practitioners: The Sub Team will finalize the questions by Monday, 30 April. Staff will create a survey and send to the Practitioners. Questions for Providers: Staff will close the document for review by Friday, 27 April and send it to the Sub Team for a final review. The Sub Team will complete a review of the questions by COB Monday, 30 April. Staff will send the questions to the Providers. Notes: 1. Questions for URS Practitioners: -- Question 3: Edit from George re: Question three – Reword as two separate questions – filing and response fees. -- The Sub Team will finalize the questions by Monday, 30 April. 2. Questions for URS Providers: -- Responses from most Providers that they can respond in 30 days for most questions, and 45-60 days for questions that require a review of decisions. -- Close the document for review by this Friday, 27 April and then send to the Providers. Review of the Questions: Communications: Question 2 – changes accepted. Question 5 – new question b captures the concern from Brian Beckham, and c addresses George’s concern. Question 6 – changes accepted. Question 7 – changes accepted. Complaints: Question 4 – Correct the grammar; providers may need to consult with examiners. Question stays as amended. It can stay in and that we understand the limitations around it. Notice of Complaint and Locking of Domain Question 5: This has been moved to another section, question 2 in Communications: Rule 4(c): "The electronic copy of the Notice of Complaint may be provided via email or an emailed link to an online platform requiring users to create an account." It can be deleted here. George and Brian have accepted the edits. The Response: Question 1: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 4: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 11: Change to: “Have you received feedback that the Response period is inadequate?” Question 14: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 15: DELETE. Concerned about the definition of “domain investors”. It will be quite difficult if not impossible to get this information from providers. Doesn’t seem much utility in the answers. Also may be able to get some of this information from determination data being gathered by Rebecca. Examiner: Question 12b: No case of an abusive complaint – no entry in the abuse case database – so is this question still necessary? Leave it in because we want to know if they have a policy. Revise to include the URDP concept of RDNH. Rewrite to ask whether the provider has a policy of allowing someone to be an examiner if they also represent complainants. Question 12c: is suggesting that part c of the question isn’t needed since we already have responses from the providers. But there is a difference between how many examiners are on the roster and how many are actually deciding decisions. Edit to make this a more targeted question regarding the size of the examiner pool, whether random assignment is used, etc. by COB 25 April. Question 13: Providers would not know the status of their examiners. Examiners may not be willing or able to say either. Also seems to be suggesting that you can’t represent both respondents and complainants. Not sure what is the point of the question. ACTION: Rephrase to focus on panel selection policy to encourage diversity in trademark practice. Suggestion: “What steps, if any, do you take to ensure that your Examiners have a diversity of relevant experience, e.g. have experience representing respondents as well as complainants?" Language: Question 4: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. In Person Hearings: DELETE. Question doesn’t make sense. Default: Question 1: Seems to ask providers how they do something for a procedure over which they have no control. ACTION: Take it back to the Sub Team to consider deleting. Question 2: DELETE. We already have this information from the case review for both within 6 months and after 6 months. Question 3: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in Examiner Determination: Question 3: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in, but include Brian’s reformulation: “Noting URS Rules 13(a) that Examiners may ‘make a Determination …in accordance with …any rules and principles of law that it deems applicable.’ Are you aware whether any case that the Examiner has invoked this rule?” Question 8: Possibly duplicative. ACTION: Take it back to the Sub Team to consider deleting, or rephrase it. Question 10: DELETE. Provider can’t know what the examiner assigns to others in their office. But could rephrase if they are aware or provide any suggested language or clerical help to examiners. George will send revised language. Remedies: Question 4: This is seeking an opinion; keep it in. Question 5: DELETE. Keep it for the WG. Question 6: Leave it in, but add: “If yes, what action did you take on receiving the notice or to resolve the query?” Effect of Court Proceeding. Question 1: Ask David McAuley to send revised language. Done: “To your knowledge, have there been instances of legal proceedings relating to URS proceedings and, if so, what effect did such instance(s) have?” Others: Question 3: Leave it in, and ask, “If so can you provide the type of information or data requested..” Also, combine with Question 4. Question 4: See above. Combine with question 3. Question 6: Policy question. Unless others have suggestions for rewriting it, the question will be deleted. Question 7: DELETE. Determined to be out of scope. Or, we could ask if Providers support sanctions against abusers of the process whether Complainant or Respondent. Also, could ask all Providers if they clearly disclose potential conflicts? Or could ask FORUM specifically. Hold off decision on this call and discuss further, although leave it out of the list of questions for now.

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Re: [gnso-rpm-wg] [Ext] Re: REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April
by Julie Hedlund April 25, 2018

April 25, 2018

Thanks Paul. Your suggested edits are noted. Best, Julie From: Paul Keating <Paul(a)law.es> Date: Wednesday, April 25, 2018 at 10:06 AM To: Julie Hedlund <julie.hedlund(a)icann.org>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [Ext] Re: [gnso-rpm-wg] REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April 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. Practitioners: 1. Do you serve as a URS panelist (Y/n) 2. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent? Yes No If yes, please briefly describe the methods used to verify the absence of conflicts If yes, do you retain records of your search 3. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist? If yes, please briefly explain the nature of such communications. 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 Sincerely, Paul Raynor Keating, Esq. Law.es[law.es] Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul(a)law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Tuesday, April 24, 2018 at 6:15 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April Dear all, Further to the message below, this is a reminder to send in any comments or suggested edits not later than today, Tuesday, 24 April. Any further suggestions will be considered along with those received thus far from Brian Beckham and George Kirikos. Best Regards, Mary, Julie, Berry, and Ariel From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Wednesday, April 18, 2018 at 7:27 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April Dear All, Please see the attached revised document “URS Practitioner Background Experience and Perspective” based on the comments and suggestions received during the RPM PDP WG meeting today, 18 April. Please review the document per the following action item highlighted below. The suggested edits are indicated by redline and strikethrough in the attached document. Questions for URS Practitioners: Staff will provide to the WG a redlined document with suggested revisions by 18 April (DONE-Attached) WG members are encouraged to provide any further comments/suggestions by COB Friday, 20 April, but not later than Tuesday, 24 April; Staff will provide to the WG a final redlined document before the meeting on Wednesday, 25 April. Please note: When the proposed questions are finalized, staff will proofread and correct typos, formatting errors, etc. before the questions are converted into a survey; WG members are encouraged to focus your comments/suggestions on the substance. Only the PDF version is provided to ensure the WG is commenting/suggesting edits to the content in one master document, so as to avoid any potential version confusion caused by Word file(s). Thank you for your time and review! Best Regards, Mary, Julie, Berry, and Ariel _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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Recording, Attendance, & WebEx Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Wednesday, 25 April 2018
by Terri Agnew April 25, 2018

April 25, 2018

Dear all, Please find the attendance and Webex Chat transcript attached to this email, and the MP3 recording below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Wednesday, 25 April 2018 at 12:00 UTC. Attendance and recording of the call is posted on agenda wiki page: <https://community.icann.org/x/TggFBQ> https://community.icann.org/x/TggFBQ MP3: <https://audio.icann.org/gnso/gnso-rpm-review-25apr18-en.mp3> https://audio.icann.org/gnso/gnso-rpm-review-25apr18-en.mp3 The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: <https://gnso.icann.org/en/group-activities/calendar> https://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: <http://mm.icann.org/pipermail/gnso-rpm-wg/> http://mm.icann.org/pipermail/gnso-rpm-wg/ Main wiki page for the working group: <https://community.icann.org/x/wCWAAw> https://community.icann.org/x/wCWAAw Kind Regards, Terri

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Tweak of question regarding effect of court proceedings on URS proceedings
by McAuley, David April 25, 2018

April 25, 2018

Dear members of the RPM PDP WG: Phil asked me on this morning's call to send to list a suggestion I made in chat regarding Question 1 under "Effect of Court Proceedings" in the "Consolidated Questions to URS Providers - 24 April 2018" document. You can see the original question on page 15 of that document<https://community.icann.org/display/RARPMRIAGPWG/2018-04-25+Review+of+all+R…>. Here is what I suggest as a tweak to the original question: To your knowledge, have there been instances of legal proceedings relating to URS proceedings and, if so, what effect did such instance(s) have? Best regards, David David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154

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Re: [gnso-rpm-wg] REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April
by Paul Keating April 25, 2018

April 25, 2018

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. Practitioners: 1. Do you serve as a URS panelist (Y/n) 2. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent? Yes No If yes, please briefly describe the methods used to verify the absence of conflicts If yes, do you retain records of your search 3. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist? If yes, please briefly explain the nature of such communications. 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 Sincerely, Paul Raynor Keating, Esq. Law.es <http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul(a)law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Tuesday, April 24, 2018 at 6:15 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April > Dear all, > > Further to the message below, this is a reminder to send in any comments or > suggested edits not later than today, Tuesday, 24 April. Any further > suggestions will be considered along with those received thus far from Brian > Beckham and George Kirikos. > > Best Regards, > Mary, Julie, Berry, and Ariel > > > From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund > <julie.hedlund(a)icann.org> > Date: Wednesday, April 18, 2018 at 7:27 PM > To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> > Subject: [gnso-rpm-wg] FOR REVIEW: Revised Questions to URS Practitioners - > Please Comment by Tuesday, 24 April > > > Dear All, > > Please see the attached revised document ³URS Practitioner Background > Experience and Perspective² based on the comments and suggestions received > during the RPM PDP WG meeting today, 18 April. Please review the document per > the following action item highlighted below. The suggested edits are > indicated by redline and strikethrough in the attached document. > > 1. Questions for URS Practitioners: >> 1. Staff will provide to the WG a redlined document with suggested revisions >> by 18 April (DONE-Attached) >> 2. WG members are encouraged to provide any further comments/suggestions by >> COB Friday, 20 April, but not later than Tuesday, 24 April; >> 3. Staff will provide to the WG a final redlined document before the meeting >> on Wednesday, 25 April. > > Please note: > * When the proposed questions are finalized, staff will proofread and correct > typos, formatting errors, etc. before the questions are converted into a > survey; WG members are encouraged to focus your comments/suggestions on the > substance. > * Only the PDF version is provided to ensure the WG is commenting/suggesting > edits to the content in one master document, so as to avoid any potential > version confusion caused by Word file(s). > > Thank you for your time and review! > > Best Regards, > Mary, Julie, Berry, and Ariel > _______________________________________________ gnso-rpm-wg mailing list > gnso-rpm-wg(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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FINAL: Revised Questions to URS Practitioners
by Julie Hedlund April 25, 2018

April 25, 2018

Dear all, Please see the final revised version of the Questions to URS Practitioners including the comments and suggested edits from Scott Austin, Brian Beckham, George Kirikos, Greg Shatan, and David McAuley. Best Regards, Mary, Julie, Berry, and Ariel From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Tuesday, April 24, 2018 at 12:21 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April Dear all, Further to the message below, this is a reminder to send in any comments or suggested edits not later than today, Tuesday, 24 April. Any further suggestions will be considered along with those received thus far from Brian Beckham and George Kirikos. Best Regards, Mary, Julie, Berry, and Ariel From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Wednesday, April 18, 2018 at 7:27 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April Dear All, Please see the attached revised document “URS Practitioner Background Experience and Perspective” based on the comments and suggestions received during the RPM PDP WG meeting today, 18 April. Please review the document per the following action item highlighted below. The suggested edits are indicated by redline and strikethrough in the attached document. Questions for URS Practitioners: Staff will provide to the WG a redlined document with suggested revisions by 18 April (DONE-Attached) WG members are encouraged to provide any further comments/suggestions by COB Friday, 20 April, but not later than Tuesday, 24 April; Staff will provide to the WG a final redlined document before the meeting on Wednesday, 25 April. Please note: When the proposed questions are finalized, staff will proofread and correct typos, formatting errors, etc. before the questions are converted into a survey; WG members are encouraged to focus your comments/suggestions on the substance. Only the PDF version is provided to ensure the WG is commenting/suggesting edits to the content in one master document, so as to avoid any potential version confusion caused by Word file(s). Thank you for your time and review! Best Regards, Mary, Julie, Berry, and Ariel

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Re: [gnso-rpm-wg] REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April
by Julie Hedlund April 24, 2018

April 24, 2018

Hi David, Thank you very much for your comment and suggested edit. They are noted. Kind regards, Julie From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of "McAuley, David via gnso-rpm-wg" <gnso-rpm-wg(a)icann.org> Reply-To: "McAuley, David" <dmcauley(a)verisign.com> Date: Tuesday, April 24, 2018 at 6:19 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: Re: [gnso-rpm-wg] REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April Hi Julie, I was not part of the practitioners subteam and so if this comment has already been discussed then so be it. It is not a major issue. #3 under Substantive Issues asks this: Do you believe that the URS is being used for the types of cases for which it was intended, namely, clear cases of abuse? Someone could answer ‘agree’ and nonetheless believe it is also being used inappropriately. Wouldn’t it help to phrase it ‘generally being used’ or ‘primarily being used’ or some such phrase? Best regards, David David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154 From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Hedlund Sent: Tuesday, April 24, 2018 12:15 PM To: gnso-rpm-wg(a)icann.org Subject: [EXTERNAL] [gnso-rpm-wg] REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April Dear all, Further to the message below, this is a reminder to send in any comments or suggested edits not later than today, Tuesday, 24 April. Any further suggestions will be considered along with those received thus far from Brian Beckham and George Kirikos. Best Regards, Mary, Julie, Berry, and Ariel From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Wednesday, April 18, 2018 at 7:27 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April Dear All, Please see the attached revised document “URS Practitioner Background Experience and Perspective” based on the comments and suggestions received during the RPM PDP WG meeting today, 18 April. Please review the document per the following action item highlighted below. The suggested edits are indicated by redline and strikethrough in the attached document. Questions for URS Practitioners: Staff will provide to the WG a redlined document with suggested revisions by 18 April (DONE-Attached) WG members are encouraged to provide any further comments/suggestions by COB Friday, 20 April, but not later than Tuesday, 24 April; Staff will provide to the WG a final redlined document before the meeting on Wednesday, 25 April. Please note: When the proposed questions are finalized, staff will proofread and correct typos, formatting errors, etc. before the questions are converted into a survey; WG members are encouraged to focus your comments/suggestions on the substance. Only the PDF version is provided to ensure the WG is commenting/suggesting edits to the content in one master document, so as to avoid any potential version confusion caused by Word file(s). Thank you for your time and review! Best Regards, Mary, Julie, Berry, and Ariel

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REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April
by Julie Hedlund April 24, 2018

April 24, 2018

Dear all, Further to the message below, this is a reminder to send in any comments or suggested edits not later than today, Tuesday, 24 April. Any further suggestions will be considered along with those received thus far from Brian Beckham and George Kirikos. Best Regards, Mary, Julie, Berry, and Ariel From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Wednesday, April 18, 2018 at 7:27 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April Dear All, Please see the attached revised document “URS Practitioner Background Experience and Perspective” based on the comments and suggestions received during the RPM PDP WG meeting today, 18 April. Please review the document per the following action item highlighted below. The suggested edits are indicated by redline and strikethrough in the attached document. Questions for URS Practitioners: Staff will provide to the WG a redlined document with suggested revisions by 18 April (DONE-Attached) WG members are encouraged to provide any further comments/suggestions by COB Friday, 20 April, but not later than Tuesday, 24 April; Staff will provide to the WG a final redlined document before the meeting on Wednesday, 25 April. Please note: When the proposed questions are finalized, staff will proofread and correct typos, formatting errors, etc. before the questions are converted into a survey; WG members are encouraged to focus your comments/suggestions on the substance. Only the PDF version is provided to ensure the WG is commenting/suggesting edits to the content in one master document, so as to avoid any potential version confusion caused by Word file(s). Thank you for your time and review! Best Regards, Mary, Julie, Berry, and Ariel

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Re: [gnso-rpm-wg] [Ext] RE: REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April
by Julie Hedlund April 24, 2018

April 24, 2018

Scott, Thank you for your comments. They are noted. With respect to the footnotes, superscripts appear as follows (highlighted in yellow): 1. Do you believe the current mechanisms for proving use in a URS case are adequate?[1] Footnote: “Specify the trademark(s) or service mark(s) on which the complaint is based and the goods or services with which the mark is used including evidence of use – which can be a declaration and a specimen of current use in commerce - submitted directly or by including a relevant SMD (Signed Mark Data) from the Trademark Clearinghouse;” Section 3(v). The Complaint, at: http://newgtlds.icann.org/en/applicants/urs/rules-28jun13-en.pdf; See also Section 1.2.6.1(a) and 8.1.2.1 at: http://newgtlds.icann.org/en/applicants/urs/procedure-01mar13-en.pdf 6. Do you believe the existing time frames for submitting filings in a URS proceeding are appropriate?[2] Footnote: These are: 14 days for a response (including a right to request 7 days extension), seeking de novo review (from default) for up to six months plus an option to request an additional 6 months, and filing an appeal for up to 14 days after default or a determination. See: The Procedure: http://newgtlds.icann.org/en/applicants/urs/procedure-01mar13-en.pdf and the Rules: http://newgtlds.icann.org/en/applicants/urs/rules-28jun13-en.pdf. Following the end of the deadline today for comments, staff will send to the WG a revised redlined document reflecting all of the comments and suggested edits, including the title and the introductory remarks provided previously by the Sub Team. Kind regards, Julie From: Scott Austin <SAustin(a)vlplawgroup.com> Date: Tuesday, April 24, 2018 at 2:16 PM To: Julie Hedlund <julie.hedlund(a)icann.org>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [Ext] RE: REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April Julie: I am reluctant to dive back in with any more changes, but several items I believe are worth mentioning on the redline I received today. The centered “title” of the document is really a heading intended for the first set of questions (which has no heading) and should be moved down to the left margin as an initial heading above the first question at a left justified location similar to the un numbered headings which follow (perhaps an A, B, C, outline format would be useful, but its in PDF so can’t insert.) There are footnote texts at the bottom of pages 5 and 6 but I could not find the superscript notes to which they relate. Does the document have a title or do these questions just appear after the introductory remarks and caveat we created previously? Perhaps we should see the entire document in final. Best regards, Scott Please click below to use my booking calendar to schedule: a 15-minute call a 30-minute call a 60-minute call [avvo.com] Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin(a)VLPLawGroup.com From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> On Behalf Of Julie Hedlund Sent: Tuesday, April 24, 2018 12:15 PM To: gnso-rpm-wg(a)icann.org Subject: [gnso-rpm-wg] REMINDER FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April Dear all, Further to the message below, this is a reminder to send in any comments or suggested edits not later than today, Tuesday, 24 April. Any further suggestions will be considered along with those received thus far from Brian Beckham and George Kirikos. Best Regards, Mary, Julie, Berry, and Ariel From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Wednesday, April 18, 2018 at 7:27 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] FOR REVIEW: Revised Questions to URS Practitioners - Please Comment by Tuesday, 24 April Dear All, Please see the attached revised document “URS Practitioner Background Experience and Perspective” based on the comments and suggestions received during the RPM PDP WG meeting today, 18 April. Please review the document per the following action item highlighted below. The suggested edits are indicated by redline and strikethrough in the attached document. Questions for URS Practitioners: Staff will provide to the WG a redlined document with suggested revisions by 18 April (DONE-Attached) WG members are encouraged to provide any further comments/suggestions by COB Friday, 20 April, but not later than Tuesday, 24 April; Staff will provide to the WG a final redlined document before the meeting on Wednesday, 25 April. Please note: When the proposed questions are finalized, staff will proofread and correct typos, formatting errors, etc. before the questions are converted into a survey; WG members are encouraged to focus your comments/suggestions on the substance. Only the PDF version is provided to ensure the WG is commenting/suggesting edits to the content in one master document, so as to avoid any potential version confusion caused by Word file(s). Thank you for your time and review! Best Regards, Mary, Julie, Berry, and Ariel This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes. [1] “Specify the trademark(s) or service mark(s) on which the complaint is based and the goods or services with which the mark is used including evidence of use – which can be a declaration and a specimen of current use in commerce - submitted directly or by including a relevant SMD (Signed Mark Data) from the Trademark Clearinghouse;” Section 3(v). The Complaint, at: http://newgtlds.icann.org/en/applicants/urs/rules-28jun13-en.pdf; See also Section 1.2.6.1(a) and 8.1.2.1 at: http://newgtlds.icann.org/en/applicants/urs/procedure-01mar13-en.pdf [2] These are: 14 days for a response (including a right to request 7 days extension), seeking de novo review (from default) for up to six months plus an option to request an additional 6 months, and filing an appeal for up to 14 days after default or a determination. See: The Procedure: http://newgtlds.icann.org/en/applicants/urs/procedure-01mar13-en.pdf and the Rules: http://newgtlds.icann.org/en/applicants/urs/rules-28jun13-en.pdf.

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Proposal to Shift URS review to Phase II
by John McElwaine April 21, 2018

April 21, 2018

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: Consolidated Questions to URS Providers - Please Comment by Friday, 20 April
by Ariel Liang April 20, 2018

April 20, 2018

Hello everyone, Thank you all for reviewing the proposed questions to URS Providers, and thanks to those who have provided comments and suggestions. Staff have consolidated the comments/suggestions and sent the redlined document to the Providers Sub Team to review and consider incorporation. Staff will share Sub Team’s feedback/input before the WG meeting on Wed, 25 April. Thank you, and have a great weekend! Best Regards, Mary, Julie, Ariel, and Berry From: "Fossen, Renee" <rfossen(a)adrforum.com> Date: Friday, April 20, 2018 at 11:56 AM To: Ariel Liang <ariel.liang(a)icann.org>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [Ext] RE: Consolidated Questions to URS Providers - Please Comment by Friday, 20 April Please see my responses to the Provider questions below. Please note that there are additional questions that seek data and information that are not readily available and will require query development before an answer is able to be provided. As the Provider with the most determinations, it will take Forum a considerable amount of time to answer the questions as drafted. The Complaint * Question 4 – requires the Provider to review decisions and potentially, party submissions to draw its own inferences as to what led the examiner to make a determination. The Response * Question 1 – The second question in Question 1 requires the review decisions and potentially party submissions. It may also require the Provider to draw its own inferences as to what led the examiner to make the determination. * Question 4 – Provider will not be able to answer this question as written as to what the Examiner considered unless it was for some reason it was included in a determination, which it likely would not. * Question 14 – requires the review decisions and responses in addition to requiring Forum to determine what an Examiner found persuasive. * Question 15 – requires the review decisions and party submissions. With respect to domain investors this may or may not be clear from the submissions. Unlikely Providers have retained such information separately. Language * Question 4 – requires the Provider to review decisions and potentially responses and in some instances may call for Provider to make certain assumptions. Default * Question 3 – requires the Provider to review decisions and speak to the thought process of Examiners. Examiner Determination * Questions 3, 6, & 8 – requires the Provider to review decisions and in some instances requests that the Provider speak to the thought process of Examiners. Remedies * Question 4 – Is the question seeking an opinion from the Providers? * Question 5 – The Providers did not create the requirements, so would not be able to speak to any perceived inconsistency. Renee Fossen Director of Arbitration Forum 6465 Wayzata Blvd., Suite 480 Minneapolis, MN 55405 Phone 952.516.6456 E-mail rfossen(a)adrforum.com<mailto:rfossen@adrforum.com> www.adrforum.com From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Ariel Liang Sent: Wednesday, April 18, 2018 2:58 PM To: gnso-rpm-wg(a)icann.org Subject: [gnso-rpm-wg] Consolidated Questions to URS Providers - Please Comment by Friday, 20 April Dear All, Staff are recirculating the two documents developed by the Providers Sub Team: 1. Consolidated questions to URS Providers 2. Responses to proposed questions (for referencing responses already received to questions excluded from the “consolidated questions to URS Providers” document) Please be so kind to provide your comments/suggestions to the “consolidated questions” document directly on the mailing list by COB Friday, 20 April. Kindly note: * When the proposed questions are finalized, staff will proofread and correct typos, formatting errors, etc. before the questions are sent to the Providers; WG members are encouraged to focus your comments/suggestions on the substance. * Only the PDF version is provided to ensure the WG is commenting/suggesting edits to the content in one master document, so as to avoid any potential version confusion caused by Word file(s). Thank you for your time and review! Best Regards, Mary, Julie, Berry, and Ariel

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Actions & Notes: RPM PDP WG 18 April 2018
by Julie Hedlund April 20, 2018

April 20, 2018

Dear All, Please see below the action items and brief notes captured by staff from the Working Group call held on 18 April 2018 (1700 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the transcript or recording. The recording, transcript, Adobe Connect chat, and attendance records are posted on the wiki. Best Regards, Julie Julie Hedlund, Policy Director Action Items: Questions for URS Practitioners: Staff will provide to the WG a redlined document with suggested revisions by 18 April; WG members are encouraged to provide any further comments/suggestions by COB Friday, 20 April, but not later than Tuesday, 24 April; Staff will provide to the WG a final redlined document before the meeting on Wednesday, 25 April. Questions for Providers: Staff will recirculate the documents for review on 18 April; WG members will provide comments/suggestions by COB Friday, 20 April; Staff will produce a redlined document for the Sub Team to review by Monday, 23 April; Sub Team will provide input/feedback on the new suggestions/edits by Tuesday, 24 April; Staff will provide to the WG a final redlined document before the meeting on Wednesday, 25 April. Report from the Documents Sub Team: Staff will recirculate the report on 18 April; WG members will review and provide comments on the list. Notes: 1. Sub Team from Practitioners: -- Moving forward on the questions for practitioners and providers does not affect the discussion concerning whether to move URS to Phase 1. -- Discussion of the final form of the questions will extend to the next call. -- Long process to get here: We presented an interim report in Puerto Rico. Decided in the Sub Team that we would do a smaller group of volunteers to get the questions in good working order. -- Goal was to make this a document that was manageable for the party that is receiving the questions to encourage them to respond. Need to balance that with ensuring we covered topics. -- Everyone was very satisfied with what the Sub Team put together. General Questions: Question 3: Overall, leaving aside the result of the proceeding, how was your experience with the process of a URS proceeding? -- Collect information on which provider you used. Indicate if you are the complainant or the respondent. -- It should also capture which provider was used for that proceeding/appeal, as the experience might differ across providers. -- We will track who is responding; staff would be able to determine if it is coming from complainant/rep or respondent/rep.) Procedural Issues: Question 4: Are you aware of any issues the Respondent may have had regarding the receipt of the notice of the proceeding? -- the complainant wouldn’t necessary know. Maybe "were there any issues" could be written as "any difficulties" -- That was asked to the providers in the other PDF, but it's more suitable for registrants/URS lawyers. Question 5: When involved as Respondent or its representative in a URS proceeding did you experience any issues with receiving notice of the proceeding? -- Instead of “you” change to “respondent”. -- May be important to include a caveat that this wouldn’t include any delay from the respondent delaying in sending to his representative. Question 6: Have you filed or been involved in an appeal of a URS decision? -- Add: “If so why?” Question 7: If yes to question 6, from the choices below how would you characterize your experience with the appeal process after a URS proceeding? -- Collect information on which provider you used. Indicate if you are the complainant or the respondent. -- It should also capture which provider was used for that proceeding/appeal, as the experience might differ across providers. -- We will track who is responding; staff would be able to determine if it is coming from complainant/rep or respondent/rep.) Substantive Issues: Question 3: Do you believe that the URS is being used for the types of cases for which it was intended, namely, clear cases of abuse? -- Question was not intended to deal with whether the panel has handled it appropriately. Practical Issues: Question 1: Do you believe the current mechanisms for proving use in a URS case are adequate? -- Include a link to the current mechanisms for proving use. Question 3: Do you believe the filing fee for a URS is appropriate? -- Add a text box: “Please suggest what you think is an appropriate filing fee.” Question 6: Do you believe the existing time frames for submitting filings in a URS proceeding are appropriate? -- Include a link to the existing time frames. Other: Question 1: If you chose not to file a URS in a particular matter, what was the reason? Please choose from the following options: -- Isn't the question limited to scope to circumstances when the URS is not chosen? -- Allow in each section to provide additional comments/general comments. Could add a text box to collect general thoughts on URS, although not sure how we could organize/use these responses. Can we add a question about the general applicability of the URS, e.g. should be extended to all gTLDs?"? What is the benefit of asking the practitioners this question? This is something the WG will consider. -- We could ask, in the “If the URS was available in all gTLDs, would you use it? Why or why not?” -- Look into whether that feature of the mechanism – whether there is value to change it from the practitioners’ perspective. -- Do we want to go into this now? Trying to get practitioners’ feedback on using URS. May not be able to get a useful response to that question. General Discussion: Does not ask how many cases they brought in terms of cybersquatting. How many were diverted to the URS? What is the primary dispute mechanism? What a practitioner decided to do with their clients trademarks and how have they proceeded. -- We do get into whether or not you chose the RPM, but tried to avoid getting into attorney-client issues. That is a sensitive issue. -- That is really an issue if you look at people who have filed UDRP. This is meant to go to URS practitioners. -- If we are going into what they have done in terms of court filings then it is a skewed area since you don’t have everyone saying what they have done or not done. -- It’s a good concept but no way to make a connection except for on a case-by-case basis. -- Not appropriate. This survey is for URS practitioners not all practitioners -- e.g. those who only filed UDRPs or court cases. 2. Next Steps: -- The Practitioners Sub Team can continue to work with staff to develop the survey, Forum has volunteered to help us reach the practitioners – who and how to reach people. Need to be cognizant not to reveal who are the respondents. -- Practitioners Questions: Hold open changes to the questions until next week’s call. -- Providers Questions: Review the questions and get it to the WG list by COB Friday, 20 April so it can be considered by the Sub Team members on the list and then staff will provide an amended document next week. -- Documents Sub Team: Has a few questions to refer to the Providers Sub Team that may already have been considered. -- Want to get Questions to practitioners and providers by the first week of May so that we can have results back in late May or early June so we can have informed discussions in Panama City. 3. Co-Chair: -- Brian Beckham has indicated his interested and is preparing a statement of qualifications. -- Time pressure with Council because the GNSO Council will need to approve in May.

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ADOBE CONNECT – WHAT NEXT? - ICANN Blog By Ash Rangan
by Nathalie Peregrine April 20, 2018

April 20, 2018

Dear all: Please take a look at this blog on Adobe Connect. And note the request: Before we make these changes, we want to hear from you. What do you think? Please submit your thoughts on this contemplated move before May 2nd here: RP-tool(a)icann.org<mailto:RP-tool@icann.org> Best regards, David https://www.icann.org/news/blog/adobe-connect-what-next[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_news_blo…> ADOBE CONNECT – WHAT NEXT? As you know, the ICANN organization took down its Adobe Connect service midway through the ICANN61 meeting in response to reported issues[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_news_blo…> with this service. Concurrently, we began to conduct our own forensic analysis of the reported incident and began working with our Adobe cloud service provider, CoSo Cloud LLC, and through them with Adobe to learn more. Shortly thereafter, we rolled out instances of Zoom and WebEx for the community to support remote participation (RP) and collaboration. Here's where we are now: The Forensics Investigation With respect to our forensics work, we received application logfiles from CoSo Cloud, going back for a period of one year. ICANN Engineering and Security teams have examined these application log files and the results of our investigation clearly show "fingerprints of incursion" by the researcher who reported the issue. We were unable to find any other indication that anyone else either identified or exploited this issue. Thanks to the person who found the bug again. Working closely with CoSo Cloud, we were able to recreate the reported issue, and understand the conditions required to trigger it. This information has been communicated to Adobe, and Adobe is working on a software fix to address the root cause of the issue. We have also been working with CoSo on options to re-enable Adobe Connect in the shorter term. We have determined there are two viable paths to accomplish this goal. They are: 1. Deploy a hardened configuration to eliminate "man-in-the-middle" exploitations by encrypting relevant traffic, or 2. Implement a programmatic fix from CoSo Cloud to substantially reduce the window during which the issue can be exploited. With respect to the first option, we attempted to hack the hardened configuration in a test environment last week, and were not able to do so over the course of 7 hours. Separately, CoSo Cloud and Adobe conducted similar tests and confirmed that this configuration is protected from exploitation of the issue. Community Feedback and Next Steps For the last three weeks, we have been gathering limited feedback regarding users' experiences with WebEx and Zoom. So far, we have input from about 200 people, including ICANN org meeting organizers and the ICANN community. Our analysis of this feedback indicates a desire to revert back to an Adobe Connect, providing the security of the service is ensured. Accordingly, we would like to propose the following plan to the broader community for consideration: 1. We would like to restore Adobe Connect services with both the new hardened configuration and the programmatic fix discussed above. Our intent would be to restore service by 3 May. This would allow us to use Adobe Connect during several upcoming events including the Board Workshop, the GDD Industry Summit, and ICANN62. 2. Once Adobe releases a new version of the software with a fix for this issue from their perspective, and provides assurance the update has been adequately tested, we will move toward that release of Adobe Connect in a prudent manner, with the help of CoSo Cloud. We believe that this approach will ensure the security of our content, and of our community interactions, while also enabling our community to use the collaboration tools of their choice. Before we make these changes, we want to hear from you. What do you think? Please submit your thoughts on this contemplated move before May 2nd here: RP-tool(a)icann.org<mailto:RP-tool@icann.org> Meanwhile, we will continue to offer WebEx and Zoom for RP and collaboration purposes. We will also continue to follow industry developments, including the research ALAC is doing on the RP and collaboration space, to ensure we are using secure and cost-effective tools that are appropriate for our needs. I look forward to your comments! David A. Olive Senior Vice President Policy Development Support Internet Corporation for Assigned Names and Numbers (ICANN)

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