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

ACTIONS & NOTES: RPM PDP WG 08 August 2018
by Ariel Liang Feb. 11, 2020

Feb. 11, 2020

Dear All, Please see below the action items and notes captured by staff from the RPM PDP WG call held on 08 August 2018 (17:00-18:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/x/uwNpBQ Best Regards, Ariel Ariel Xinyue Liang GNSO Policy Support Specialist Internet Corporation for Assigned Names and Numbers (ICANN) == ACTION ITEMS: * Brian Beckham to send to the WG a WIPO FAQ with regard to “Doe Complaint”. * Renee Fossen to provide more information on HSTS-preloaded domain suspension issues in the written responses. * Staff to recirculate the Super Consolidated URS Topics Table document * WG members to provide substantive comment and raise anything they believe is missing on the WG mailing list by COB Tue, 14 Aug. Co-Chairs will then discuss among themselves to determine further actions/process. * WG members to finish reviewing the rest of the Super Consolidated URS Topics Table document, including page 24-35, during next week’s call. Later period to discuss larger policy issues. NOTES: Review Agenda/Statements of Interest * George Kirikos has become a member of the At-Large Community: https://community.icann.org/display/gnsosoi/George+Kirikos+SOI General Comment on the Super Consolidated URS Topics Table Document * The topics in the table were developed by the WG members and deliberated on by the WG & URS Sub Teams. Each Sub Team then did very substantial work on data collection and reviewing what came back. While the actual Sub Team recommendations and suggestions captured in this document are what is intended the WG should discuss - to see if it wishes to develop policy or operational recommendations - discussion over what should be on the actual list of topics should not be reopened unless the WG agrees to do so. We encourage all WG members to review all the previous reports from each Sub Team, and all the documents they worked on. They are linked in this Super Consolidated document (page 2). * The Super Consolidated document is a summary of findings and suggestions by the Sub Teams. The Table does not mean to limit/restrict recommendations from the WG members. If there is any issue overlapping with UDRP, can possibly be carried over to the phase II of the PDP. * Is it possible to add additional topics to the Super Consolidated Table? One WG member said that access to the Courts, for example, is a topic he raised, which isn't in the table. Statute of Limitations, whether URS should apply to legacy gTLDs as a consensus policy, are just a few of the topics not in the table. He brought it up in November 2017 (see: https://mm.icann.org/pipermail/gnso-rpm-wg/2017-November/002585.html ) and it was reflected in a later document. That's a critical issue for registrants. if they don't have access to the courts to challenge a URS decision, then it's a huge denial of their rights. * While the chart is not meant to foreclose further discussion, it is a good faith attempt at capturing the work of the sub teams. The purpose of today's, and likely the next few, calls was to make sure this was an accurate and comprehensive reflection of our discussions so far. That said, WG members should bear in mind that we are seeking consensus, so items which are unlikely to achieve that may not be appropriate to reflect as a recommendation, but could be included in public comments on the Initial Report. Also, before adding items to this chart, we will want to work with staff to see whether such topics was previously discussed, and if so, the level of agreement/consensus. In other words, it is not necessary final, but is equally an opportunity to reintroduce topics which have been discussed, but for which consensus is/was not possible. * Could we create a list of "missing issues" -- a list of issues raised in this call (and calls to follow); we can evaluate the nature and weight of these ideas later. * Regarding the Action Items highlighted in column 3 of the table, Providers ST will do a first pass of the responses from the Providers to the follow-up questions, and then discuss the issues that they identified and proposed suggestions with the full WG. Limited filing period (page 3) * One WG member believes that there should be limitation for filing period to bring URS Complaints, so the domain registered many years ago would not be subject to unfair treatment. He said a registrant who owns a domain for 20 years, for example, shouldn't have to be concerned about a policy that can take their domain down with very short time period to respond. * Other WG members said this was discussed, and did not achieve agreement. That would only even be an option if the trademark pre-dated. This is unlikely to be a situation in practice where a URS was brought because it would probably not be a "slam dunk" case after 20 years unless there had been a change of circumstances. * On the issue of delay and laches - as reported by the Docs Sub Team, the data did not provide any basis for which a policy recommendation should be made. The Providers and Practitioners Sub Teams also did not uncover any specific issues that came to either practitioners' or providers' attention. Administrative Review (page 3-4) * One WG member asked whether ICANN should bring Providers into contractual relationship in order to enforce the URS Rules & Procedures. Another member said it probably need to be ICANN’s legal department to enforce the rules & procedure. * URS Providers have MoU with ICANN. Whether it is ICANN’s compliance department or legal department to enforce the rules & procedures, it should not be controversial that Providers must abide by them. * An MOU could be legally enforceable, depending on the circumstances. 500-word Complaint limit (page 4-5) * On 500-word Complaint Limit - Practitioners' survey results were split (out of 12, 5 agree it's sufficient, 4 disagree); results included feedback from some that the word limit was too low: "arbitrary and often insufficient" and "should be slightly increased". * One member said he understands and generally agrees with the decision not to suggest an expansion of the word limit, he wonders if there aren't situations (multi- domain challenges, etc.) where a Complainant or Respondent might be given the opportunity to request an expansion. This point can be captured for decisional phase. * Another member suggested that perhaps providers can provide stats on the average word length of complaints, to see how close to the 500 words they are at present. (i.e. a table of distributions, e.g. 10% under 200 words, 20% between 201 and 300, etc.) Amending the Complaint in light of GDPR/Temp Spec (page 5-6) * One member believes that 2-3 days might not be a good rule (e.g. weekends, time to research, etc.). Maybe 5 business days. * WIPO’s approach to “doe complaints” has been very helpful and provides some comfort that the lack of true registrant/registrant organization data masked due to GDPR will not result in a deficient complaint for an omitted respondent. * ACTION ITEM: Brian Beckham to send to the WG a WIPO FAQ with regard to “Doe Complaint”. * Forum is asking for amendment of the complaint in UDRP - under the rules that's not allowed in URS. SMD Files (page 6-7) * SMD files are used for limited purpose of demonstrating the use. * Recollection is that SMD files would be passed to the Examiners and relay the critical information related to the TM registration. That's why some people are surprised by the limited info SMD files would provide. * The SMD files contain some basic human-readable information, with the rest of the information coded. For example, the trademark itself is human-readable but the applicable Nice classification is coded. A SMD file is used by registries/registrars for validation, and as Greg noted, to demonstrate use. From the TMCH provider: http://www.trademark-clearinghouse.com/help/faq/which-information-does-smd-… * If the intent of the STI was that the SMD file would be a file summary, that got lost somewhere along the way, way before the SMD file was designed by the TMCH providers. * Rules 3(b)(v) 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 * It might be useful to look at the spec that they relied on. But the real question is how should the examiner get the relevant data about the Complainant’s mark. The SMD file is probably not the answer, if it was ever intended to be. * the Examiner is not required to second-guess the SMD file. Its existence is sufficient that the mark has had use validated by the TMCH. Other Topics (page 7-8) * These are policy proposals can be brought up when WG members are proposing changes to the URS policy itself. Charter asks us to address the question whether the URS should become a consensus policy applicable to legacy domains. Charter is not specific regarding whether such discussion should occur in phase I or phase II. This feedback illustrates that the ST didn't get to propose policy changes, it is for the WG to discuss and propose changes. * when we reference the STI and IRT reports, we need to keep in mind they only had about 1-2 months to complete their work and produce a report; they were not standard PDP working groups and had limited charters and mandates, which were set by the Board * This is feedback from one Provider, who may want to grow their business. Practitioners survey are from Complaints' side. Need to have a balanced solution when considering the input. * There were plenty of practitioners that represent registrants in the Subgroup, although their experience was largely with the UDRP. Duration of response period (Page 11) * One member believes that if the URS continues in its current form, it would affect valuable domain names. The ones the registrants that do want to defend them, 14 days are not sufficient. 20 days may be more appropriate. It should be based on the age of the domain name. If a domain is 3 months, it will have a shorter period to respond. If you own a domain name for 5-10 years, response period would be longer so less urgency. * Several other WG members disagree. The URS is supposed to be an expedited proceeding so increasing the length of time of a streamlined proceeding defeats the purpose. At most, there could be an additional 3 or 4 days extension period for cause. The point is that there are enough circumstances that give rise to the URS 'quick response' that we should NOT make assumptions into policy. It is an assumption that an "aged" domain would not require a fast response. In Mexico, we have not been able to file a domain name case due to Courts ignorance about the subject and also, because it could take years to be solved. We're spinning out fo control - extending the time to respond to URS cases just because a domain registration is not new defeats the purpose of fast action to take down an infringing domain once it's discovered. The URS is meant to address clear and convincing cases of infringement. A person registers a domain name for less than $50 and brand owner find out about at some point and then files an injunction in court for tens of thousands of dollars. Where is the balance. Examiners Guide (page 13) * The WIPO guidance for examiners took 1500 hours to develop. * The WIPO guidance is relevant to the URS, the elements are shown are the same and the differences include the burden of proof, word limit, etc. A lot of WIPO guidance goes to the shade of grey issues. URS is for clear black/white cases, so if there is a URS guidance it would likely be abbreviated. Duration of Suspension Period & Review of Implementation (page 21-23) * One WG member suggests to find out how much cost for registries & registrars to comply with the URS rules and procedures. Need to get data/feedback from the registries/registrars. * Other WG members are not sure "cost of implementation of URS" for Registries/Registrars is relevant to effectiveness of URS. We don't need to do a cost/benefit analysis (the costs & benefits aren't ICANN's), the providers, registrars, registries need to be asked if they are overburdened by the costs of compliance. * There is an action item to contact the registries/registrars about these issues. Timing TBD due to Sunrise & Claims survey launch. Other topics (page 23-24) * One WG member thinks the HSTS issue is not difficult to fix. The Providers need to improve their technical applicability to resolve the issue. Renee Fossen from Forum disagrees. * ACTION ITEM: Renee Fossen to provide more information on HSTS-preloaded domain suspension issues in the written responses. NEXT STEPS * ACTION ITEM: Staff to recirculate the Super Consolidated URS Topics Table document and ask all WG members to provide substantive comment and raise anything they believe is missing on the WG mailing list by COB Tue, 14 Aug. Co-Chairs will then discuss among themselves to determine further actions/process. * ACTION ITEM: WG to finish reviewing the rest of the Super Consolidated URS Topics Table document, including page 24-35. Later period to discuss larger policy issues.

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Revised Proposed Procedures for URS Policy and Operational Recommendations
by Julie Hedlund Sept. 4, 2018

Sept. 4, 2018

Dear RPM PDP Working Group members On behalf of the Co-Chairs, please see the attached revised Proposed Procedures for URS Policy and Operational Recommendations. As noted previously, the Co-Chairs believe that these procedures will efficiently and fairly facilitate the RPM PDP Working Group discussion and development of URS policy and operational recommendations over the course of the upcoming Working Group meetings in September, beginning with our next meeting. Please note that the deadline for submission of member proposals for URS operational and policy modifications has been extended to COB on Thursday, September 6th. The Co-Chairs have fully discussed and considered the comments on the initial version of the Proposed Procedures. As a result, the attached revised document, with changes in redline, includes the following changes from the version initially sent on 21 August, and revised per the Working Group discussion at the meeting on 22 August: Section 1, bullet 1: Add the sentence, “The WG will be working off from the “Super Consolidated URS Topics Table” for the review of the URS Sub Teams’ operational and policy proposals.” Section 1, bullet 2: Date for commencement of staff presentations of Sub Team proposals changed to August 29. Section 2, bullet 1: Clarification that the WG will be addressing Sub team “operational and policy” proposals. Section 2, bullet 6: Change the deadline for proposal submissions from COB Friday, 31 August to COB Thursday, 06 September so that the Co-Chairs will begin to consider proposals at their weekly meeting on Friday, 07 September. Section 3, new bullet 4: Added a procedure to address Phase 2 proposals. Section 6: Change “significant support” to “adequate” (meaning support from Working Group members that in the Co-Chairs’ judgment is of a level for which public comments should be sought via the Initial Report) throughout. Under the heading “During the presentation”: Bullet 3: add “However, if there is exceptionally high interest in a topic, the Co-Chairs would have discretion to increase the discussion time.” Bullet 4: change “two (2) minutes” to “four (4) minutes” to allow individual proposers more time to respond to comments. Section 7: Change “significant support” to “adequate support” throughout. Bullet 1: add “the Co-Chairs may suggest for WG consideration a consolidated proposal that includes elements of the multiple related proposals.” Bullet 2: change “substantial opposition” to “substantial material opposition” and after “Initial Report” add, “for the purpose of soliciting public comment thereon.” Additional language also clarifies that Sub Team proposals only enjoy a rebuttable presumption of adequate support for inclusion in the Initial Report to solicit community input, but no advantage over individual proposals for inclusion as Final Report recommendations. The Co-Chairs would like to re-emphasize that the Working Group faces a significant challenge in adhering to its current timeline and completing its URS work for the Initial Report by the end of September. It is therefore imperative that the Working Group agrees on tight procedures that provide a fair opportunity for all members to propose operational and policy modifications to the URS. In addition, the procedures should facilitate identification of those proposals that lack an adequate level of support as well as those that may be deferred to Phase Two of the Working Group’s efforts because they are substantially intertwined with UDRP issues. The Co-Chairs note that there have been questions raised as to the role of Sub Teams vis-à-vis that of the full Working Group, particularly in relation to the treatment of Sub Team proposals. Under the GNSO Working Group Guidelines, Sub Teams may be used “as an efficient means of delegating topics or assignments to be completed [and] sub-teams report their results to the whole Working Group for review and approval” (Section 2.3). The three URS Sub Teams have spent a considerable amount of time and conducted extensive deliberations that have resulted in their various reports to the full Working Group and the findings and proposals now reflected in the Super Consolidated URS Topics Table. As highlighted during the last Working Group call, the full Working Group is now being requested to carefully review and discuss those proposals. It is also important to note that the Working Group Guidelines “encourage representational balance [on Sub Teams] to the degree possible. However, it should be understood that there will not always be volunteers from every interest group and that it is often acceptable to have a small sub-team that is not totally representational perform an initial role that will later be reviewed by a broader more representational group” (Section 2.2.). In any event, the revised Procedures make clear that Sub Team recommendations only have a rebuttable presumption, subject to Working Group feedback, of enjoying an adequate level of support to be included in the Initial Report for the purpose of soliciting community input; and that Sub Team proposals, like those from individuals, will only become Final Report recommendations if they achieve Full Consensus or Consensus. Unless Working Group members have specific objections to the revisions or wish to raise concerns that have not been voiced to date, these Proposed Procedures will go into effect as of the next Working Group meeting on Wednesday, 05 September, during which the Working Group will use the “Super Consolidated URS Topics Table” (as updated by staff following the last Sub Team calls) for the review of the URS Sub Teams’ proposals. A new version of that document will be sent shortly and Working Group members are requested to be prepared to discuss the Sub Teams’ proposals for policy or operational changes. For those instances where Sub Teams have agreed that no additional policy work is required, WG members can propose otherwise. Best regards, Mary, Julie, Ariel & Berry On behalf of the RPM PDP Working Group Co-Chairs

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Agenda and Materials for 05 Sept Working Group Meeting 1200 UTC
by Julie Hedlund Aug. 31, 2018

Aug. 31, 2018

Dear RPM PDP Working Group members On behalf of the Co-Chairs, please see below the draft agenda for the Working Group meeting on Wednesday, 05 September 2018 at 1200 UTC for 120 minutes. Draft Agenda: Review Agenda/Statements of Interest Updates Reminder Concerning the Procedures for URS Policy and Operational Recommendations and Revised Proposal Submission Deadline of COB on September 6th (see attached document) Begin Discussion of URS Policy and Operational Recommendations (see attached Super Consolidated URS Topics Table) AOB As noted previously, the Co-Chairs believe that the attached revised Procedures for URS Policy and Operational Recommendations, as circulated earlier this week, will efficiently and fairly facilitate the RPM PDP Working Group discussion and development of URS policy and operational recommendations over the course of the upcoming Working Group meetings in September, beginning with our next meeting on 05 September. Please also see the attached revised Super Consolidated URS Topics Table. The table includes the final proposals agreed to by the URS Sub Teams this week with redlines to show updates from previous recommendations that had been presented to the Working Group. The purpose of the updates was to ensure that the proposals are specific and clearly worded. Also attached is a clean version of the table without the redlines. Working Group members are requested to be prepared to discuss the Sub Teams’ proposals for policy or operational changes. For those instances where Sub Teams have agreed that no additional policy work is required, Working Group members can propose otherwise. In addition, not all Sub Team proposals are finalized due to continuing discussions of certain issues. Sub Team members are welcome to speak to any outstanding issues when the specific proposals are being discussed during the Working Group meetings. Best regards, Mary, Julie, Ariel & Berry On behalf of the RPM PDP Working Group Co-Chairs

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Updated URS Phase One Timeline
by Julie Hedlund Aug. 31, 2018

Aug. 31, 2018

Dear RPM PDP Working Group members, On behalf of the RPM PDP WG Co-Chairs, please see the attached updated timeline for Phase One of the review of the RPMs. This timeline takes into account the new procedure for the review of URS policy and operational recommendation proposals, as well as the timing of the Sunrise and Claims surveys and the analysis and review of the data collection. Please note that this timeline reflects an aggressive, if plausible, “best case scenario”. It depends on a number of important assumptions and milestone achievements. Factors such as the frequency and duration of meetings, as well as possibly scheduling around major holidays, affect the timeline as well. In order to achieve this timeline, the Co-Chairs and staff believe it will be necessary for the Working Group to begin to extend the duration of weekly meetings. In addition, as a result of having to now account for the timing of the Sunrise and Claims surveys and the URS procedural approach, staff believes that it will be necessary to push out the estimated delivery date of the Phase One Final Report to the GNSO Council. This is a further change from previous estimates by the Co-Chairs and staff as follows: In January 2018 the aim was to complete the URS review by mid-April 2018; review the Sunrise & Claims survey results by late-July 2018; publish an Initial Report before ICANN63 (i.e. October 2018) and a submit to the GNSO Council a Final Phase One Report by mid-February 2019. In March 2018, the Consolidated RPM/SubPro “best case scenario” timeline slide presented to the GNSO Council had new milestones - complete URS review by end-June; TMCH/Sunrise/Claims by November; and submit a Final Phase One Report by mid-Q2 2019. Earlier this month, staff had updated the March 2018 slide to aim to complete discussion of URS proposals by end-September and Sunrise/Claims/TMCH by end-December; and submit a Final Phase One Report by end-Q2 2019. In the updated draft timeline the new “best case scenario” date for submission of a Final Phase One Report is now early/mid-August 2019 (with URS discussions scheduled through late October; Sunrise/Claims/open TMCH issues ending in February 2019; and subject, as mentioned, to certain assumptions with respect to key milestones. As always, the timeline remains subject to change depending on the extent of discussion that will be required in order for the Working Group to determine that an issue/topic has been properly and sufficiently discussed and all relevant proposals duly considered, to ensure that policy development work is thorough and reflects the input of a representative cross-section of the interested/affected communities. Best, Mary, Julie, Ariel & Berry On Behalf of the RPM PDP Working Group Co-Chairs

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URS Proposal Submissions - 31 Aug 2018
by Ariel Liang Aug. 31, 2018

Aug. 31, 2018

Dear RPM WG members, This is to let you know that Zak Muscovitch submitted five (5) URS Proposals by COB today (31 Aug 2018). You may see the proposals uploaded to the wiki page here: https://community.icann.org/x/aACNBQ Have a nice weekend! Best Regards, Mary, Julie, Ariel & Berry

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URS Proposal Submissions - 30 Aug 2018
by Ariel Liang Aug. 30, 2018

Aug. 30, 2018

Dear RPM WG members, This is to let you know that David McAuley and Maxim Alzoba submitted URS Proposals by COB today (30 Aug 2018). You may see the proposals uploaded to the wiki page here: https://community.icann.org/x/aACNBQ Best Regards, Mary, Julie, Ariel & Berry

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URS Proposal Submissions - 28 Aug 2018
by Ariel Liang Aug. 29, 2018

Aug. 29, 2018

Dear RPM WG members, This is to let you know that George Kirikos submitted two more URS Proposals by COB today (28 Aug 2018). You may see the proposals uploaded to the wiki page here: https://community.icann.org/x/aACNBQ Best Regards, Mary, Julie, Ariel & Berry

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URS Respondent Response Rates -- China vs. USA
by George Kirikos Aug. 28, 2018

Aug. 28, 2018

Hi folks, To support an upcoming proposed URS policy re: language, I did some analysis today of the data that had been generously shared with the working group by Rebecca Tushnet: https://www.dropbox.com/s/1dodxsqkauqp1vr/URS%20Case%20Review%20-%20Final.x… comparing the response rates (within 14 days) of respondents from the top 2 respondent countries, namely China and the USA. Rebecca's data showed there were 252 cases involving a respondent from China, and they responded (within 14 days) 50 times, for a response rate of 19.8%. For the 159 cases involving a respondent from the United States, they responded (within 14 days) 57 times, for a response rate of 35.8%, which is markedly higher. Furthermore, if one compares the number of "Denied" cases, there were just 11 of them for registrants from China, for a "win rate" of the domain name registrants of just 4.4% (11/252). For respondents/registrants from the United States, 20 of the 159 URS complaints were denied, for a much higher "win rate" of 12.6%. I'm posting these stats to the mailing list, so that others have access to them, and to also reduce the need to have to reproduce the calculations in the URS Proposals submissions (which uses up some of the 250 words!). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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CANCELLED: 29 August RPM PDP Working Group Meeting
by Julie Hedlund Aug. 27, 2018

Aug. 27, 2018

Dear RPM PDP Working Group members, The Working Group call this week on 29 August at 12:00 UTC is cancelled. Instead, it will be re-purposed for the URS Sub Teams to refine the language of their draft proposed policy recommendations and operational fixes for the Working Group to consider at the meeting on Wednesday, 05 September. The Sub Teams will shortly receive further guidance separately. Best, Mary, Ariel, Berry, and Julie On behalf of the RPM PDP Working Group Co-Chairs

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URS Proposal Submission - 1
by Ariel Liang Aug. 27, 2018

Aug. 27, 2018

Dear RPM WG members, Kindly find attached the first URS Proposal submitted by George Kirikos. Staff have created a wiki page to store the individual proposals submitted: https://community.icann.org/x/aACNBQ (the structure/organization of the page may be updated). Best Regards, Mary, Julie, Ariel & Berry

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