December 2019 - GNSO-RPM-WG

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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Post Call | Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG | Wednesday, 18 December 2019
by Terri Agnew Jan. 8, 2020

Jan. 8, 2020

Dear all, All recordings for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG call held on Wednesday, 18 December 2019 at 17:00 UTC can be found on the agenda wiki page <https://community.icann.org/x/_ZIzBw> (attendance included) and the GNSO Master calendar <https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_group…> . These include: * Attendance (please let me know if your name has been left off the attendance list) * Audio recording * Zoom chat archive * Zoom recording (including audio, visual, rough transcript) * Transcript As a reminder only members can join the call, observers can listen to the recordings and read the transcript afterwards. Please email gnso-secs(a)icann.org<mailto:gnso-secs@icann.org> if you would like to change your status from observer to member. For additional information, you may consult the mailing list archives <http://mm.icann.org/pipermail/gnso-rpm-wg/> and the main wiki page<https://community.icann.org/x/wCWAAw>. Thank you. With kind regards, Terri

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Proposed Agenda for RPM Meeting on Wednesday, 08 January 2020 at 17:00-18:30 UTC
by Julie Hedlund Dec. 18, 2019

Dec. 18, 2019

Dear RPM WG members, Please find the proposed agenda and materials for the WG meeting on Wednesday, 08 January 2020 at 17:00-18:30 UTC. Draft Proposed Agenda: 1. Review Agenda and Updates to Statements of Interest 2. Complete Discussion of Individual URS Proposals, see attached survey results slides and the wiki at: https://community.icann.org/x/aACNBQ -- Order of remaining proposals: 3, 30, 26, 7, 28, 19, 29, 5, 31, 21, 6, 33, 15, 22, 4, 14, 13, 17, and 16. 3. AOB Best Regards, Mary, Julie, Ariel 1. Procedure for handling individual proposals at each of the December meetings: * The proposals will be reviewed in the following order - begin with a proposal that received the highest level of support for inclusion in the Initial Report, followed by a proposal that received the lowest level of support for inclusion, then a proposal that received the next-highest level of support for inclusion, followed by one that received the next-lowest level of support, and so forth, until all proposals have been reviewed. Based on this procedures, here is the order of the proposals: 2, 23, 1, 8, 34, 35, 11, 18, 27, 20, 36, 32, 3, 30, 26, 7, 28, 19, 29, 5, 31, 21, 6, 33, 15, 22, 4, 14, 13, 17, 16. * For each proposal, where a Working Group member had indicated (by the December 1 deadline) that he/she wished to argue in favor of including the proposal as an actual Working Group recommendation, that member will be given no more than 3 minutes to make his/her case, with questions and answers (limited to 2 minutes per question or answer and two inputs per member). * Members are kindly requested not to rehash arguments/discussions and to keep their remarks, questions and answers very brief. * Subject to a determination by the Chairs, proposals with wide support and virtually no opposition will be considered as recommendations by the WG. * Proposals with wide support and limited opposition will be published for comment in the Initial Report as individual URS Proposals. * Proposals with virtually no support and significant opposition will not be published in the Initial Report. * Following the Working Group’s review of all individual URS proposals, and in accordance with role ascribed to Working Group chair(s) under the GNSO Working Group Guidelines, the Working Group leadership team will determine whether there is sufficient support from other Working Group members: (i) to “convert” any individual proposal (where one was so argued) to an initial recommendation for purposes of the Initial Report; (ii) to include specific individual proposals in the Initial Report as proposals only; and (iii) to exclude the remaining individual proposals from the Initial Report (although these will all be referenced in the report, with links provided to the actual text of the proposals and the Working Group’s deliberations).

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Actions: RPM PDP WG Meeting 18 December 2019
by Julie Hedlund Dec. 18, 2019

Dec. 18, 2019

Dear All, Please see below the action items captured by staff from the RPM PDP Working Group call held on 18 December 2019 at 17:00 UTC. Staff will post these to the wiki space. Please note that these are high-level notes and are not meant as a substitute for the recording, chat room, or transcript. The recording, Zoom chat, transcript and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2019-12-18+Review+of+all+R…. Best Regards, Julie Julie Hedlund, Policy Director == NOTES & ACTION ITEMS Actions: #27: -- ACTION: Look at the Sub Team recommendation and check with Zak to see if it’s already covered. Sub Team Recommendations: “The WG recommends that public comment be sought on the following questions: - What compliance issues have Registries and Registrars discovered in URS processes, if any?  - Do you have suggestions for how to enhance compliance of URS Providers, Registries, and Registrars in the URS process? The WG recommends that the ICANN Org establishes a compliance mechanism to ensure that URS Providers, Registries, and Registrars operate in accordance with the URS rules and requirements and fulfill their role and obligations in the URS process.” Notes: 1. Updates to Statements of Interest: No updates provided. 2. Discussion of Individual URS Proposals: 11, 18, 27, 20, 36, 32, 3, 30, 26, 7, 28, 19, 29, 5, 31, 21, 6, 33, 15, 22, 4, 14, 13, 17, 16. See all proposals at: https://community.icann.org/x/aACNBQ #11: From 11 December meeting: -- Get comment on other possible numbers (3-15, not just on 3). -- Although in general 3 is sufficient to demonstrate a pattern, agree to asking for Public Comment on the appropriate number to demonstrate a pattern. -- Noting the comment on commercial plans, agree to increasing this to 5 -- but getting input on the number appropriate -- Maintain the proposed language and reduction to 3. -- Continue discussion at the next meeting and on the other proposals. From 18 December meeting: -- Don’t support putting it out as it stands. Verification is not defined and no idea how idea how you figure out if someone is a registrant. 3 also is really low. -- We are here to address as to whether there is support to put the proposal out for public comment, not asking for substantive comments on the proposal. -- Don’t believe there is additional delay through this proposal, but a part of the process. -- The "confirmation" part is the problem that extends the URS, which for other proposals is a reason not to support them. -- At the Forum the response fee for 15-50 domains = $400. URS is a very low cost and as a result has very few safeguards and the 3 proposal is very low, so low that it could be used to deter genuine use. -- The number was a question that had been included in being put out for comment -- Support putting this out as 2-part question: should threshold be reduced & input on #. But will need context. -- Seems to be sufficient support for publication, with some opposition. Offer as a two-part open-ended question. #18: -- Addresses a situation that has actually taken place. -- One member opposes public comment. -- One member supports public comment with a menu of proposals (with #19 and #20). -- Note that UDRP is out of scope for the Phase One Initial Report, so don’t support publication. -- For those who don’t support publication there is some support for #20. -- Confusing because of the conflation with the UDRP. The problem that was encountered wasn’t a URS problem because in the URS you have an appeals path. -- Don’t think this is clearly enough explained to recommend going out for public comment. -- We can’t solve for bad complaint-drafting by someone seeking civil litigation to address a URS decision. -- That's why this proposal is to set aside the decision: it ensures that there is a case or controversy regardless of the local law about arbitration/potential tortious interference w/business or other grounds. -- On the contrary, as you know unless there is an ACPA or similar claim, the use of a domain name does not give rise to trademark claims. Precisely why the UDRP/URS ADR procedures were adopted. -- That is not an accurate description of US law--plenty of 32 and 43(a) claims about domain names exist and existed. Not aware of any jurisdiction that declines to evaluate domain names under ordinary TM law even if there are also additional rules but maybe you can provide examples. -- #18 – The URS is complicated enough without bringing this framework from British Columbia; #19 – 38% support for publication, there is enough of an issue to consider putting it out for public comment; #20 – very low support combined. Not worth publication. -- Do not believe Proposals 18, 19, or 20 should be presented for public comment as having substantial opposition and minimal support. -- Some support for #19 and #20. #19: -- Some support for 19 in the chat. -- 4 of 5 comments supported, but that is not representative of the 65% that did not support. -- Moved past an issue to a remedy without showing that the issue exists. -- Oppose 18, 19 and 20. These are not workable or appropriate proposals. -- Support publishing to get thoughts on whether there are alternative ways to deal with the problem. -- What are the grounds for vitiation? Taking a term out of context. -- Point would be not that the decision would be set aside – but the complainant and respondent would be in the same position as though the URS did not exist. -- But the proposal says “set aside” and offers no alternative route. -- This is a proposal to dismantle URS and UDRP – we are here to revise them, not dismantle them. -- I along with a substantial minority (bearing in mind the make-up of the survey participants) support it going out for publication and haven't completely made up my mind whether I support it in substance or not. -- It says if a court finds no cause of action - i.e. the person appealing the URS decision has filed claims with a court and the court has ruled that there is no cause of action - then the URS decision is set aside... it does not suggest any other route to reaching a substantive decision regarding the disposition of the domain name... and as Paul M said it would seem to basically undermine the entire URS process #20: -- Very misguided and dangerous proposal. US courts are under no compulsion to follow it. -- Not sure if it is even possible. #27: -- Support for publication. -- Is this already addressed by Sub Team URS recommendations? Is this really needed. -- Already covered by the existing URS rules. -- Distinction from the current rules is to keep the Curriculum Vitae current. -- ACTION: Look at the Sub Team recommendation and check with Zak to see if it’s already covered. Sub Team Recommendations: “The WG recommends that public comment be sought on the following questions: - What compliance issues have Registries and Registrars discovered in URS processes, if any?  - Do you have suggestions for how to enhance compliance of URS Providers, Registries, and Registrars in the URS process? The WG recommends that the ICANN Org establishes a compliance mechanism to ensure that URS Providers, Registries, and Registrars operate in accordance with the URS rules and requirements and fulfill their role and obligations in the URS process.” #32: -- Not substantial support for publication. -- If it can’t become consensus then don’t publish? -- Is this related to David McCauley’s proposal? Could they be combined? From David: Subtle distinction: the proposal under #31 was made on behalf of Verisign – a proposal to seek public comment on whether the URS should be made consensus policy (not that we are suggesting that it be consensus policy). -- 32 really consists of two proposals: (1) eliminate URS; (2) URS should not be consensus policy applicable to legacy gTLDs -- We are not chartered to dismantle RPMs: "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." -- Outside the scope of the charter. -- Seems to be putting the question in the form of an answer. That the proposal is to eliminate it. -- Okay to raise the question (as in #31) as to whether the URS should be consensus policy. -- Seems to be support to not publish it. #36: -- Between the URS procedures section 6 on default and section 12 on appeals --- where a respondent doesn’t reply in case of a default there can be as many as 3 de novo appeals. Under 6.4 they have up to a year for a de novo review and in section 12 there is another de novo review. Asking if we should limit to one de novo review. -- Trying to streamline areas that are duplicative. -- Support from several members to put out for public comment. -- Doesn’t seem to be evidence based. -- There has been no use of the duplicative repeated de novo processes afforded under the URS. So yes, this proposal is based on the evidence of lack of use. -- Significant change from URS rules. If we put it out for comment we should provide the context in the current rules. -- Question: Is the standard here that we put the language as written out? Can commenters make wordsmithing changes? -- This was not a sub team proposal, but was supported by a number of individuals. -- The outcome sub team discussion of the de novo review, per the table, is: “NOTE: There is no WG recommendation at this time. The Documents Sub Team recommends that the full RPM Working Group assesses Individual Proposals #8 and #36 and determine whether any of them can rise to the level of Working Group recommendation.”

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Proposed Agenda for RPM Meeting on Wednesday, 18 December at 17:00-18:30 UTC
by Julie Hedlund Dec. 16, 2019

Dec. 16, 2019

Dear RPM WG members, Please find the proposed agenda and materials for the WG meeting on Wednesday, 18 December at 17:00-18:30 UTC. Draft Proposed Agenda: 1. Review Agenda and Updates to Statements of Interest 2. Complete Discussion of Individual URS Proposals, see attached survey results slides: Complete the discussion on Proposal 11 followed by proposals 18, 27, 20, 36, 32, 3, 30, 26, 7, 28, 19, 29, 5, 31, 21, 6, 33, 15, 22, 4, 14, 13, 17, and 16. 3. AOB Best Regards, Mary, Julie, Ariel 1. Procedure for handling individual proposals at each of the December meetings: * The proposals will be reviewed in the following order - begin with a proposal that received the highest level of support for inclusion in the Initial Report, followed by a proposal that received the lowest level of support for inclusion, then a proposal that received the next-highest level of support for inclusion, followed by one that received the next-lowest level of support, and so forth, until all proposals have been reviewed. Based on this procedures, here is the order of the proposals: 2, 23, 1, 8, 34, 35, 11, 18, 27, 20, 36, 32, 3, 30, 26, 7, 28, 19, 29, 5, 31, 21, 6, 33, 15, 22, 4, 14, 13, 17, 16. * For each proposal, where a Working Group member had indicated (by the December 1 deadline) that he/she wished to argue in favor of including the proposal as an actual Working Group recommendation, that member will be given no more than 3 minutes to make his/her case, with questions and answers (limited to 2 minutes per question or answer and two inputs per member). * Members are kindly requested not to rehash arguments/discussions and to keep their remarks, questions and answers very brief. * Subject to a determination by the Chairs, proposals with wide support and virtually no opposition will be considered as recommendations by the WG. * Proposals with wide support and limited opposition will be published for comment in the Initial Report as individual URS Proposals. * Proposals with virtually no support and significant opposition will not be published in the Initial Report. * Following the Working Group’s review of all individual URS proposals, and in accordance with role ascribed to Working Group chair(s) under the GNSO Working Group Guidelines, the Working Group leadership team will determine whether there is sufficient support from other Working Group members: (i) to “convert” any individual proposal (where one was so argued) to an initial recommendation for purposes of the Initial Report; (ii) to include specific individual proposals in the Initial Report as proposals only; and (iii) to exclude the remaining individual proposals from the Initial Report (although these will all be referenced in the report, with links provided to the actual text of the proposals and the Working Group’s deliberations).

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Actions: RPM PDP WG Meeting 11 December 2019
by Julie Hedlund Dec. 12, 2019

Dec. 12, 2019

Dear All, Please see below the action items captured by staff from the RPM PDP Working Group call held on 11 December 2019 at 18:00 UTC. Staff will post these to the wiki space. Please note that these are high-level notes and are not meant as a substitute for the recording, chat room, or transcript. The recording, Zoom chat, transcript and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2019-12-11+Review+of+all+R…. Best Regards, Julie Julie Hedlund, Policy Director == NOTES & ACTION ITEMS Actions: Page 10 (bottom of page): F. REMEDIES - 2. Duration of suspension period; 3. Review of implementation, POLICY RECOMMENDATION (Providers ST): ACTION: Staff to provide revised text that incorporates the comments provided by Maxim Alzoba, including adding a reference to the URS rules with respect to termination due to settlement. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Working Group to complete discussions regarding the recommendations of the URS Sub Teams’ to go into the Initial Report – Review new text per the action items (pages 10, 15, and 20) below and as redlined in the Google doc at: https://docs.google.com/document/d/1jlsM6yl3A9ssPdHymjZwoSQXsncsl8h_9oOE1vF…<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> a. Page 10 (bottom of page): F. REMEDIES - 2. Duration of suspension period; 3. Review of implementation, POLICY RECOMMENDATION (Providers ST): ACTION: Staff to provide revised text that incorporates the comments provided by Maxim Alzoba, including adding a reference to the URS rules with respect to termination due to settlement. Discussion: -- If the URS is won, there is no settlement, if settlement happening, there is no URS. -- The specific question is on extending the registration through a different registrar. -- Both (settlement prior to determination AND extension of registration WITHOUT a settlement) were given as different examples of situations where the ST found difficulties in communicating with Registries or registrars. -- Settlement prior to the determination is outside of URS.’ -- This question has nothing to do with a settlement that occurs before determination. -- Forgot to mention about the item with Registrar change after the URS won, the word transfer has very special meaning in the policies, and might have a change of the registrant (the latter is forbidden under URS), and thus I would recommend to mention that such change will not change the registrant. -- Add the reference to the URS rules with respect to termination due to settlement. This is in the case where there is a winning complainant and that complainant is requesting to extend the suspension for another year. b. Page 15 (top of the page): F. REMEDIES - 4. Other topics: -- The WG discussed the edits and accepted them. c. Page 20 (bottom of the page): J. LANGUAGE ISSUES - 1. Language issues, including current requirements for complaint, notice of complaint, response, determination ACTION ITEM: : Add “and the location of the service will determine the language of that service, which may be relevant.” Discussion: -- Not a GDPR issue, the issue is that it is less timely to get the data if there is a privacy or proxy service in place. -- The problem identified was the situation where the “real” registrant is not known when the proceeding commences in language A (b/c of a P/P service) but subsequently it’s discovered that the “real” registrant’s primary language is language B. -- Add “and the location of the service will determine the language of that service, which may be relevant.” 3. Begin Discussion of Individual URS Proposals, see attached survey results slides and procedure below. The order of the proposal review is: 2, 23, 1, 8, 34, 35, 11, 18, 27, 20, 36, 32, 3, 30, 26, 7, 28, 19, 29, 5, 31, 21, 6, 33, 15, 22, 4, 14, 13, 17, 16. Results of WG Discussion on the Individual Proposals: #2: Wide support: publish in the Initial Report #23: Virtually no support: do not publish in the Initial Report #1: Wide support – put the proposal out for comment as is (with both options): publish in the Initial Report #8: Virtually no support: do not publish in the Initial Report #34: Wide support – some concerns, but worth to put out for public comment: publish in the Initial Report #35: Virtually no support: do not publish in the Initial Report #11: Continue discussion: -- Get comment on other possible numbers (3-15, not just on 3). -- Although in general 3 is sufficient to demonstrate a pattern, agree to asking for Public Comment on the appropriate number to demonstrate a pattern. -- Noting the comment on commercial plans, agree to increasing this to 5 -- but getting input on the number appropriate -- Maintain the proposed language and reduction to 3. -- Continue discussion at the next meeting and on the other proposals. Next meeting: Proposals 11, 18, 27, 20, 36, 32, 3, 30, 26, 7, 28, 19, 29, 5, 31, 21, 6, 33, 15, 22, 4, 14, 13, 17, 16.

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Unacceptable URS determinations our initial report will not begin to address
by Paul Tattersfield Dec. 12, 2019

Dec. 12, 2019

Dear All, Here are 3 example URS determinations that seem very troubling from the public information available. As I pointed out on the call last week, the recommendations from the WG subgroups fail to prevent what seem to be very problematic determinations occurring. I hope all working group members will agree this situation in the absence of further facts is totally unacceptable and those leading the working group will take the necessary action to ensure the initial report will include recommendations to ensure nothing like this will be allowed to happen again. Yours sincerely, Paul. *cfa.club * Creation date July 17, 2017 Registrar www.eachnic.com Complainant submitted September 19, 2019 Commencement October 7, 2019 Default Date October 22, 2019 Domain Suspended October 25, 2019 Examiner Flip Jan Claude Petillion https://www.adrforum.com/DomainDecisions/1862966D.htm Claimant CFA Institute of Charlottesville Represented DLA Piper LLP (US) of Washington Respondent Hao Ming of Beijing, International, CN. Rationale *The Complainant holds that the Respondent is attempting to disrupt the business of a competitor but provides no proof that the Respondent is one of its competitors. However, the passive holding of a domain name can constitute bad faith registration and use, especially when combined with other factors such as the respondent preventing a trademark or service mark holder from reflecting its mark in a corresponding domain name, the failure of the respondent to respond to the complaint, inconceivable good faith use, etc. (See e.g., Telstra Corporation Limited, Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Myer Stores Limited v. Mr. David John Singh, WIPO Case No. D2001-0763; Liu.Jo S.p.A. v. Martina Hamsikova, WIPO Case No. D2013-1261). In the present case, Respondent is passively holding the disputed domain name as it does not resolve to any active* * website. * *It is inconceivable to the Examiner that Respondent was unaware of Complainant and its trademark rights when it registered the disputed domain name which is identical to Complainant’s CFA registered trademark. Given the well-known character of Complainant's CFA trademark, Respondent must have had Complainant's trademark in mind when registering the disputed domain name. This is further supported by the fact that the Respondent registered the disputed domain name under the new gTLD “.CLUB”, which increases confusion as the Complainant’s members can be considered as being part of a club. Moreover, Examiner finds that, given the well-known character of the Complainant’s CFA trademark, it is difficult to imagine any future good faith use of the disputed domain name by Respondent. * *Respondent did not file any response to contest the above. Therefore, Examiner finds that the third element for Complainant to obtain the suspension of a domain name under URS 1.2.6.3 has been proven * *cfa.community* Creation date September 24, 2019 Registrar domains.google.com Complainant Submitted October 8, 2019 Commencement October 8, 2019 Default Date October 23, 2019 Domain Suspended October 23, 2019 Examiner Dawn Osborne https://www.adrforum.com/DomainDecisions/1862966D.htm Claimant CFA Institute of Charlottesville Represented DLA Piper LLP (US) of Washington Respondent Contact Privacy Inc. Customer 1245526592 of Toronto, ON, CA Rationale Effectively blank – just a repeat of the URS rules Not even mention of what was being claimed *cfa.plus * Creation date September 25, 2019 Registrar www.west.cn Complainant Submitted October 16, 2019 Commencement October 17, 2019 Response Date October 29, 2019 Domain Suspended October 29, 2019 Examiner David L. Kreider https://www.adrforum.com/DomainDecisions/1866970F.htm Claimant CFA Institute of Charlottesville Represented DLA Piper LLP (US) of Washington Respondent Peng Cheng Li of He Nan, International, CN Rationale *“The Respondent submits in support of his Response a certificate of qualification issued to the Respondent, Peng Cheng Li (**李鹏程* *), by the China Commodities Association and dated November 2012, along with a business license dated 23 September 2019, pertaining to a Shanghai-based information technology company. Respondent’s said certificates each bear the legend: “For use as evidence in the CFA Institute’s <cfa.plus> litigation only”. * *Respondent concedes that he “had made no formal use of the domain name” by the time he received notice of the commencement of these URS proceedings on October 17, 2019. Significantly, moreover, the Panel notes the complete absence of evidence to show demonstrable preparations to use the Disputed Domain Name, or a name corresponding to the domain name, in connection with any bona fide offering of goods or services. The Panel concludes that the Registrant intentionally sought to disrupt the business of a competitor or use the <cfa.plus> domain name to attract for commercial gain, Internet users to Registrant’s web site or other on-line location, by creating a likelihood of confusion with the Complainant’s CFA Mark, as to the source, sponsorship, affiliation, or endorsement of Registrant’s product or service on that web site or location* *, or both. * *cfa.business* Creation date August 28, 2019 Registrar www.godaddy.com Complainant Submitted October 16, 2019 Commencement October 17, 2019 Default Date November 1, 2019 Domain Returned November 1, 2019 Examiner Richard W. Hill https://www.adrforum.com/DomainDecisions/1866971D.htm Claimant CFA Institute of Charlottesville Represented DLA Piper LLP (US) of Washington Respondent Domains By Proxy, LLC / DomainsByProxy.com of Scottsdale, AZ, US Rationale “*Complainant states: "By creating confusion through its registration of a domain name wholly comprised of CFA Marks, Respondent is attempting to disrupt the business of a competitor, which is evidence of bad faith registration." Complainant provides evidence showing that the disputed domain name is not being used. Since the standard of review in URS proceedings is "clear and convincing", and Complainant does not explain why failure to use the disputed domain name could constitute bad faith use, the Panel finds that Complainant has not satisfied its burden of proof for this element.”*

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Post Call | Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG | Wednesday, 11 December 2019
by Andrea Glandon Dec. 11, 2019

Dec. 11, 2019

Dear all, All recordings for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG call held on Wednesday, 11 December 2019 at 18:00 UTC can be found on the agenda wiki page <https://community.icann.org/x/95IzBw> (attendance included) and the GNSO Master calendar <https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_group…> . These include: * Attendance (please let me know if your name has been left off the attendance list) * Audio recording * Zoom chat archive * Zoom recording (including audio, visual, rough transcript) * Transcript As a reminder only members can join the call, observers can listen to the recordings and read the transcript afterwards. Please email gnso-secs(a)icann.org<mailto:gnso-secs@icann.org> if you would like to change your status from observer to member. For additional information, you may consult the mailing list archives <http://mm.icann.org/pipermail/gnso-rpm-wg/> and the main wiki page<https://community.icann.org/x/wCWAAw>. Thank you. With kind regards, Julie

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Proposed Agenda for RPM Meeting on Wednesday, 11 December at *18:00-19:30 UTC*
by Julie Hedlund Dec. 11, 2019

Dec. 11, 2019

Dear RPM WG members, Please find the proposed agenda and materials for the WG meeting on Wednesday, 11 December at 18:00-19:30 UTC. Draft Proposed Agenda: 1. Review Agenda and Updates to Statements of Interest 2. Working Group to complete discussions regarding the recommendations of the URS Sub Teams’ to go into the Initial Report – Review new text per the action items (pages 10, 15, and 20) below and as redlined in the Google doc at: https://docs.google.com/document/d/1jlsM6yl3A9ssPdHymjZwoSQXsncsl8h_9oOE1vF… [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> 3. Begin Discussion of Individual URS Proposals, see attached survey results slides and procedure below. The order of the proposal review is: 2, 23, 1, 8, 34, 35, 11, 18, 27, 20, 36, 32, 3, 30, 26, 7, 28, 19, 29, 5, 31, 21, 6, 33, 15, 22, 4, 14, 13, 17, 16. 4. AOB Best Regards, Mary, Julie, Ariel Actions from 04 December Meeting: Page 10 (bottom of page): F. REMEDIES - 2. Duration of suspension period; 3. Review of implementation, POLICY RECOMMENDATION (Providers ST): ACTION: Staff to provide revised text for WG review. See: “The Providers Sub Team discovered issues with respect to implementing the outcomes of a URS proceeding (e.g. relief awarded following a URS decision, or where the parties settle the case prior to Determination and a transfer at the registrar level is required, or where a Complainant’s requests to extend a suspension.” Page 15 (top of the page): F. REMEDIES - 4. Other topics: ACTIONS: 1) Add a bullet: “What would need to be done to help resolve the issues you have encountered?” 2) Note in the table that the following text should be added as a footnote in the Initial Report and vet by GDD (done). Also, in the initial report provide the context for why this remedy is relevant to a URS suspension: “HSTS preloading is a function built into the browser whereby a global list of hosts enforce the use of HTTPS ONLY on their site. This removes the opportunity an attacker has to intercept and tamper with redirects over HTTP. The aforementioned remedy is to suspend the HSTS preloading function of a domain name.” Page 20 (bottom of the page): J. LANGUAGE ISSUES - 1. Language issues, including current requirements for complaint, notice of complaint, response, determination ACTION ITEM: Rewrite the text to avoid the use of the term “privacy shield”. See: “Such guidance should take into account the fact that domains subject to a URS complaint may have been registered via a privacy or proxy service.” 1. Procedure for handling individual proposals at each of the December meetings: * The proposals will be reviewed in the following order - begin with a proposal that received the highest level of support for inclusion in the Initial Report, followed by a proposal that received the lowest level of support for inclusion, then a proposal that received the next-highest level of support for inclusion, followed by one that received the next-lowest level of support, and so forth, until all proposals have been reviewed. Based on this procedures, here is the order of the proposals: 2, 23, 1, 8, 34, 35, 11, 18, 27, 20, 36, 32, 3, 30, 26, 7, 28, 19, 29, 5, 31, 21, 6, 33, 15, 22, 4, 14, 13, 17, 16. * For each proposal, where a Working Group member had indicated (by the December 1 deadline) that he/she wished to argue in favor of including the proposal as an actual Working Group recommendation, that member will be given no more than 3 minutes to make his/her case, with questions and answers (limited to 2 minutes per question or answer and two inputs per member). * Members are kindly requested not to rehash arguments/discussions and to keep their remarks, questions and answers very brief. * Subject to a determination by the Chairs, proposals with wide support and virtually no opposition will be considered as recommendations by the WG. * Proposals with wide support and limited opposition will be published for comment in the Initial Report as individual URS Proposals. * Proposals with virtually no support and significant opposition will not be published in the Initial Report. * Following the Working Group’s review of all individual URS proposals, and in accordance with role ascribed to Working Group chair(s) under the GNSO Working Group Guidelines, the Working Group leadership team will determine whether there is sufficient support from other Working Group members: (i) to “convert” any individual proposal (where one was so argued) to an initial recommendation for purposes of the Initial Report; (ii) to include specific individual proposals in the Initial Report as proposals only; and (iii) to exclude the remaining individual proposals from the Initial Report (although these will all be referenced in the report, with links provided to the actual text of the proposals and the Working Group’s deliberations).

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Correction - Actions: RPM PDP WG Meeting 04 December 2019
by Julie Hedlund Dec. 5, 2019

Dec. 5, 2019

Dear All, Please see below the action items captured by staff from the RPM PDP Working Group call held on 04 December 2019 at 17:00 UTC. Staff will post these to the wiki space. Please note that these are high-level notes and are not meant as a substitute for the recording, chat room, or transcript. The recording, Zoom chat, transcript and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2019-12-04+Review+of+all+R…. Please note the correction in the SOIs in red below. Best Regards, Julie Julie Hedlund, Policy Director == NOTES & ACTION ITEMS Actions: Page 10 (bottom of page): F. REMEDIES - 2. Duration of suspension period; 3. Review of implementation, POLICY RECOMMENDATION (Providers ST): ACTION: Staff to provide revised text for WG review. See: “The Providers Sub Team discovered issues with respect to implementing the outcomes of a URS proceeding (e.g. relief awarded following a URS decision, or where the parties settle the case prior to Determination and a transfer at the registrar level is required, or where a Complainant’s requests to extend a suspension.” Page 15 (top of the page): F. REMEDIES - 4. Other topics: ACTIONS: 1) Add a bullet: “What would need to be done to help resolve the issues you have encountered?” 2) Note in the table that the following text should be added as a footnote in the Initial Report and vet by GDD (done). Also, in the initial report provide the context for why this remedy is relevant to a URS suspension: “HSTS preloading is a function built into the browser whereby a global list of hosts enforce the use of HTTPS ONLY on their site. This removes the opportunity an attacker has to intercept and tamper with redirects over HTTP. The aforementioned remedy is to suspend the HSTS preloading function of a domain name.” Page 20 (bottom of the page): J. LANGUAGE ISSUES - 1. Language issues, including current requirements for complaint, notice of complaint, response, determination ACTION ITEM: Rewrite the text to avoid the use of the term “privacy shield”. See: “Such guidance should take into account the fact that domains subject to a URS complaint may have been registered via a privacy or proxy service.” Notes: 1. Updates to Statements of Interest: -- Zak Muscovitch joined At-Large as an individual member. -- Susan Payne was re-elected as IPC Secretary. 2. Working Group to complete discussions regarding the recommendations of the URS Sub Teams’ to go into the Initial Report, see: https://docs.google.com/document/d/1jlsM6yl3A9ssPdHymjZwoSQXsncsl8h_9oOE1vF… [docs.google.com] [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> (page 4) Page 10 (bottom of page): F. REMEDIES - 2. Duration of suspension period; 3. Review of implementation, POLICY RECOMMENDATION (Providers ST): ACTION: Staff to provide revised text for WG review. See: “The Providers Sub Team discovered issues with respect to implementing the outcomes of a URS proceeding (e.g. relief awarded following a URS decision, or where the parties settle the case prior to Determination and a transfer at the registrar level is required, or where a Complainant’s requests to extend a suspension.” Page 15 (top of the page): F. REMEDIES - 4. Other topics: ACTIONS: Add a bullet: “What would need to be done to help resolve the issues you have encountered?” Note in the table that the following text should be added as a footnote in the Initial Report and vet by GDD (done). Also, in the initial report provide the context for why this remedy is relevant to a URS suspension: “HSTS preloading is a function built into the browser whereby a global list of hosts enforce the use of HTTPS ONLY on their site. This removes the opportunity an attacker has to intercept and tamper with redirects over HTTP. The aforementioned remedy is to suspend the HSTS preloading function of a domain name.” Page 20 (bottom of the page): J. LANGUAGE ISSUES - 1. Language issues, including current requirements for complaint, notice of complaint, response, determination ACTION ITEM: Rewrite the text to avoid the use of the term “privacy shield”. See: “Such guidance should take into account the fact that domains subject to a URS complaint may have been registered via a privacy or proxy service.”

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