Thank you, Mary, Julie, and Ariel. I am having some email issues and have been unable to reply to your email - thus doing this reply as a new message but on the same subject.
I have the following comments on the current draft text of Sunrise Final Recommendation 2:
First, I support the Recommendation with the word 'intentionally' inserted before 'circumventing'. It is important that registries only be subject to enforcement action for intentional circumvention of an RPM.
Second, in the Implementation Guidance, I support the initial sentence only to this extent:
The Working Group agrees that this recommendation and its implementation are not intended to preclude or restrict a Registry Operator's legitimate business practices that are compliant with ICANN policies and procedures.
I do not support the suggested extension of that sentence that reads:
, such as the Approved Launch Program (ALP) as well as the reservation of domain names as required in Specification 5 of the base Registry Agreement applicable to the 2012 New gTLD Program round.
The problem with selectively listing approved conduct is that listing some but not all examples of "legitimate business practices" creates an implication that those that are unlisted may be illegitimate. We would have to list all possible "legitimate" practices to avoid that problem; not only would that be an impossibly long list, but undoubtedly we could miss some. As the WG has not agreed on any definitive list of "legitimate" registry business practices, it is best to remain silent and leave further development to the IRT.
Third, following that brief implementation guidance I support placing all of the remaining language (starting with "To assist" and ending with "'picket fence"") in the Context section and do not support it as Implementation Guidance. This language carries no more weight as Implementation Guidance than the language presently listed below Context and deserves no elevated status.
My position therefore is in support of the "Alternative option" proposed in brackets. The fact that this language is merely narrative context is supported by some of the language it contains, specifically, "the Working Group tried to reach agreement over some possible types of specific Registry conduct that could have the effect of intentionally circumventing trademark owners' use of the Sunrise Period...the Working Group noted that several public comments to the Initial Report had raised the following examples as non-exhaustive illustrations of such conduct...However other Working Group members expressed concerns about or objected to listing these examples". This language makes clear that the WG was unable to agree on any definitive Implementation Guidance for the IRT beyond the agreement that the Recommendation should not be enforced against "legitimate business practices". Further supporting this position is this language in the Public Comment review section, "the Working Group did not agree on the specific form of implementation guidance or examples [of registry conduct] for inclusion".
That said, in placing the remainder of the language into the Context section, I recommend that we tweak the second bullet item (beginning 'Discriminatory pricing practices ...') to make it more precise. Where it now says:
"discriminatory pricing practices" could include extremely high pricing of trademark-corresponding domains during the Sunrise Period
In both bullets I suggest changing 'trademark-corresponding' to 'Trademark-Clearinghouse-recorded-corresponding'; this change reflects the fact that all trademarks are not eligible for Sunrise registration, only those that are recorded in the TMCH after being validated as meeting its qualitative eligibility standards..
In the second bullet I suggest the word 'landrush' be capitalized; this is consistent with the capitalization of Sunrise Period and General Availability in the same sentence.
Fourth, in the first paragraph following the non-exhaustive list of resources I suggest changing the first sentence from this:
The Working Group also discussed the question of the appropriate enforcement mechanism for addressing such conduct by a Registry Operator.
To this:
The Working Group also discussed the question of whether there should be an additional enforcement mechanism, apart from action taken by ICANN Compliance on its own or at the request of an outside party, for addressing such conduct by a Registry Operator.
That change would reflect the fact that new RA provision being recommended is enforceable, as are all provisions of contracts between ICANN and Contracted Parties.
I also suggest that the last sentence in that paragraph be changed from this:
As such, the Working Group did not reach agreement on the question of an enforcement mechanism.
To this:
As such, the Working Group did not reach agreement on the question of an additional enforcement mechanism to supplement ICANN Compliance.
Finally, in the Public Comment Review paragraph, I recommend that these words in the first sentence: '...the Working Group agreed that it should develop ...' should be changed to: '... the Working Group agreed that it should try to develop ...'
This change reflects the fact that the Working Group was unable to agree on additional Implementation Guidance beyond making clear that a Registry's "legitimate business practices" should not be targeted for enforcement.
I appreciate your attention to these suggestions, as well as that of WG members.
Thank you and best regards,
David
David McAuley
Sr International Policy & Business Development Manager
Verisign Inc.
703-948-4154
