September 2020 - GNSO-RPM-WG

REMINDER: DEADLINE COB 25 Sept - ACTION ITEM: Sunrise Recommendation #2 and Small Team 2 Suggested Language:
by Julie Hedlund Sept. 25, 2020

Sept. 25, 2020

Dear all, As a reminder, please see the action below and send comments if any to this list not later than COB Friday, 25 September. Kind regards, Mary, Ariel, and Julie From: GNSO-RPM-WG <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Wednesday, September 23, 2020 at 11:57 AM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [GNSO-RPM-WG] DEADLINE COB 25 Sept - ACTION ITEM: Sunrise Recommendation #2 and Small Team 2 Suggested Language: Dear all, Per the WG Co-Chairs, please note the deadline for this action: Please send comments if any to this list not later than COB Friday, 25 September. Note also that the WG discussion of Sunrise Recommendation #2 and the original Implementation Guidance language will be on the agenda for the WG meeting on Tuesday, 29 September, to be followed by a separate discussion of the Sub Team 2 suggested Implementation Guidance language. As a reminder, here is a link to Sunrise Recommendation #2 and the original Implementation Guidance language: https://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQyEW… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/12w5W2bQcviAq…>. Also as a reminder, here is the proposed Implementation Guidance language for Sunrise Recommendation #2 from Small Team 2: Suggestion Language from Small Team 2: “Implementation Guidance to Sunrise Recommendation 2: The IRT should explore the possibility of a third party challenge mechanism as one of the possible means, among others (for example, direct enforcement by ICANN Compliance) to implement this Recommendation to enforce the implementation of this recommended new RA provision. Any such third party challenge mechanism should include appropriate safeguards for registries.” Kind regards, Mary, Ariel, and Julie From: GNSO-RPM-WG <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Tuesday, September 22, 2020 at 4:09 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [GNSO-RPM-WG] REMINDER - ACTION ITEM: Sunrise Recommendation #2 and Small Team 2 Suggested Language: Dear All, Please see the action item below and post any comments to this list ASAP. Kind regards, Mary, Ariel, and Julie From: GNSO-RPM-WG <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Thursday, September 17, 2020 at 5:07 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [GNSO-RPM-WG] ACTION ITEM: Sunrise Recommendation #2 and Small Team 2 Suggested Language: Dear All, Please see the action item below from the WG meeting on 17 September: Sunrise Recommendation #2 and Small Team 2 Suggested Language: ACTION ITEM: Discuss WG suggested revisions to the Recommendation and Implementation Guidance along with the suggested language from Small Team 2. Please see the suggested revisions to Sunrise Recommendation #2 in the Google document at: https://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQyEW… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/12w5W2bQcviAq…>. Please also review the following Suggested Language from Small Team: Suggestion Language from Small Team 2: “Implementation Guidance to Sunrise Recommendation 2: The IRT should explore the possibility of a third party challenge mechanism as one of the possible means, among others (for example, direct enforcement by ICANN Compliance) to implement this Recommendation to enforce the implementation of this recommended new RA provision. Any such third party challenge mechanism should include appropriate safeguards for registries.” Please post any comments or questions for discussion to this list ASAP. Kind regards, Mary, Ariel, and Julie From: GNSO-RPM-WG <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Thursday, September 17, 2020 at 2:49 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [GNSO-RPM-WG] Notes and Action Items: RPM PDP WG Meeting 17 September 2020 Dear All, Please see below the action items captured by staff from the RPM PDP Working Group call held on 17 September 2020 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/2020-09-17+Review+of+all+R…. Best Regards, Julie Julie Hedlund, Policy Director == NOTES & ACTION ITEMS Actions: Sunrise Recommendation #2 and Small Team 2 Suggested Language: ACTION ITEM: Discuss WG suggested revisions to the Recommendation and Implementation Guidance along with the suggested language from Small Team 2. Suggested Language from Small Team 1 on ALP relating to Sunrise Questions #3 and #4: ACTION ITEM: Staff will check with GDS to see if this recommendation is feasible. URS Final Recommendation (was #1): ACTION ITEM: Minor change in the contextual language – change from “the Working Group affirms” to “the Working Group further notes”. New URS Final Recommendation: ACTION ITEM: Remove the quoted text from Purpose 6-PA5 and move it to a footnote for reference. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Sunrise Recommendation #2 and Small Team 2 Suggested Language; see: Suggested Language from Small Team 2<http://mm.icann.org/pipermail/gnso-rpm-wg/2020-September/004503.html> andhttps://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQ… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/12w5W2bQcviAq…> -- Concerns raised by Maxim Alzoba about the two examples that they are too broad. -- Further to my point, as was noted earlier, this is a high-level policy recommendation; the IRT will be tasked with implementing this recommendation and our guidance should be sufficient to allow the IRT to craft an appropriately tailored RA amendment and (hopefully a challenge mechanism with appropriate safeguards built in so as to not inhibit legitimate registry activities -- I agree (I think) with Jason insofar as implementing this recommendation may necessitate a third party challenge mechanism akin to the PDDRP or pICDRP so aggrieved TM owners can challenge a registry activity and there can be a ruling as to whether the activity is legitimate or not. -- Concerns about misinterpretation if we are not clear. -- Perhaps we can just add a third bullet that says, “registry activities that have a bona fide legitimate basis or rationale are explicitly not intended to be inhibited by this provision”. -- As a staff suggestion for your consideration — perhaps we can include something to this effect: “The Working Group notes that this recommendation is not intended to preclude or restrict Registry operator’s legitimate business practice and pricing practice that are compliant with ICANN policies and procedures.”? -- Add to bullet point 1 (slightly revised)-- adding: "without countervailing rationale and/or reasonable activity by registries, including handling of dictionary terms.” -- Suggest addition to the Recommendation: “The Working Group recommends that the Registry Agreement for future new gTLDs include a provision stating that a Registry Operator shall not operate its TLD in such a way as to have the effect of [intentionally] circumventing the mandatory RPMs imposed by ICANN or restricting brand owners’ reasonable use of the Sunrise rights protection mechanism.” Text in brackets. -- Don’t think adding “intentionally” in the rec helps us because it doesn’t really address Maxim’s concern, because reserving a name intentionally as part of an ALP or something is still intentional. ACTION ITEM: Discuss suggested language from Small Team 1 on the list. Suggestion Language from Small Team 2: “Implementation Guidance to Sunrise Recommendation 2: The IRT should explore the possibility of a third party challenge mechanism as one of the possible means, among others (for example, direct enforcement by ICANN Compliance) to implement this Recommendation to enforce the implementation of this recommended new RA provision. Any such third party challenge mechanism should include appropriate safeguards for registries.” -- Why would the proposed additional implementation guidance language be a beneficial addition to the existing implementation guidance? Answer: Takes some of the burden off of Compliance. -- Does the phrase “explore the possibility of a third party challenge mechanism” encompass and authorize the IRT’s adoption and implementation of such a mechanism if it is found to be possible? Answer: To amend the language to “explore and if possible implement”. -- Would the challenge mechanism be operative against ICANN, a registry alleged to have circumvented a RPM, or both? Answer: It would be against the registry that is alleged to have circumvented it. There already is a way to challenge staff and Board actions. -- This would not be a mechanism as a way for ICANN Org Compliance to enforce – this would be a separate mechanism? Answer: Correct. Discussion: -- Opposed to this language. Sunrise Rec #2 itself is still vague. -- Registries agree by contract to comply, but IRTs cannot develop consensus policies or revise contract terms – so this is out of scope. -- This is putting one vagueness on top of another. -- What authority does an IRT have to do these types of things. -- Didn't an IRT create the URS, PDDRP, PICDRP, to name a few? -- Sunrise Rec #2 seems to beg for a third-party challenge mechanism. -- 1. Clause could include a clause to include a challenge mechanism. 2. IRTs do this sort of thing all the time (e.g. the AGB and all of the challenge mechanisms with it). -- Idea is that there would be an independent panel that an aggrieved party could go to – so not relying on ICANN Compliance and could be an independent review. -- Why isn't a complaint to ICANN compliance sufficient here? I agree with David that it's especially problematic to move from "vague standard applied by single decisionmaker" to "vague standard applied by various possible decisionmakers" -- Would this be a time-sensitive mechanism? -- Because in response to the complaints over the years on sunrise circumvention, ICANN has consistently said they could do nothing about it. -- Circumvention itself is not defined, so cannot be enforced. -- ICANN compliance would need to have a role, in a similar way it does in a PICDRP for instance; an independent panel would actually perform the substantive review and ICANN compliance would implement a panel finding, for example. -- If Rec 2 is "start doing something about it" then why isn't ICANN compliance the appropriate place? -- URS and PDDRP are not Consensus Policy either. They were created during implementation of the 2007 GNSO PDP on New gTLDs. -- Divergence in the WG on this suggested text. ACTION ITEM: Discuss the suggested language on the list. 3. Suggested Language from Small Team 1 on ALP relating to Sunrise Questions #3 and #4; see: http://mm.icann.org/pipermail/gnso-rpm-wg/2020-September/004505.html “The Working Group recommends guidance to the Implementation Review Team that the Approved Launch Program (ALP) Application Review Guidelines be reviewed and clarified in order to address feedback obtained by the working group regarding the length of time and complexity of process involved in seeking to obtain approval for an ALP, and in particular recommends that the IRT consider the following: 1. Where ICANN can not make a determination regarding an ALP application it will notify the Registry Operator to that effect within 45 days stating explicit reasons for needing more time and further, provide a decision date projection plan within a time period not to exceed another 30 days. There should be a reasonable expectation that all negotiations should be completed within a 7 month period. 2. Where ICANN determines to decline an ALP application or make a request for further information ICANN will include a full explanation of the aspects of the ALP application ICANN deems to be acceptable and the aspects ICANN deems to be unacceptable.” Discussion: -- The reference to an ALP being adopted is in the TMCH procedures if approved it is outside of or in contravention of Sunrise. This is directly related to the operation of the Sunrise. -- TMCH RPMs Requirements document that is incorporated by reference into the AGB and the RA (http://newgtlds.icann.org/en/about/trademark-clearinghouse/rpm-requirements…) 4.5 deals with Launch Programs, specifically 4.5.2: Registry Operator MAY, prior to the start date of its Sunrise Period, apply to ICANN for approval to conduct a registration program not otherwise permitted by these TMCH Requirements. Such a registration program application could, for example, provide for authorization to implement programs set forth in Registry Operator’s application for the TLD, which, if set forth in reasonable detail in the application for the TLD, will carry a presumption of being approved, unless ICANN reasonably determines that such requested registration program could contribute to consumer confusion or the infringement of intellectual property rights. If Registry Operator seeks ICANN’s approval of a program under this Section 4.5.2, and such requested registration program is substantially similar to a...” ACTION ITEM: Staff will check with GDS to see if this recommendation is feasible. 4. URS Final Recommendations; see: https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMP… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1huKNcgg3VAk9…> a. URS Final Recommendation (was #1): -- Recommendation language stays as is. -- Contextual language – inserted text to reflect the WG’s agreement to include the EPDP Phase 1 Recommendation #27 Wave 1 Report. ACTION ITEM: Minor change in the contextual language – change from “the Working Group affirms” to “the Working Group further notes”. b. New URS Final Recommendation: -- This is based on URS Question 1. -- It is a new recommendation based on responses received in the public comment. -- The context comes from the WG discussion of URS Question 1. -- The public comment review is based on the discussion of URS Question 1 and suggestion for a recommendation. Discussion: -- Questions about the contextual language. Concern that the reference to Purpose 6-PA5 is somehow binding. -- Staff noted that it is not binding and there was no change to the new recommendation resulting from the WG’s review of the ICANN org’s EPDP Phase 1 Recommendation #27 Wave 1 Report. ACTION ITEM: Remove the quoted text from Purpose 6-PA5 and move it to a footnote for reference.

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Post Call | Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG | Thursday, 24 September 2020 at 17:00 UTC
by Andrea Glandon Sept. 24, 2020

Sept. 24, 2020

Dear all, All recordings for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG call held on Thursday, 24 September 2020 at 17:00 UTC can be found on the agenda wiki page <https://community.icann.org/x/0QG-C> 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 <https://mm.icann.org/pipermail/gnso-rpm-wg/> and the main wiki page<https://community.icann.org/x/wCWAAw>. Thank you. Kind regards, Andrea

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CLOSED Re: Final draft language about GIs in TMCH - 14 September 2020
by Julie Hedlund Sept. 23, 2020

Sept. 23, 2020

Dear Working Group members, Staff notes that as of the deadline of Monday, 21 September no questions or comments were received on the draft language. Thus, this item is closed and staff will incorporate the final text into the set of final recommendations for the formal consensus call. Kind regards, Mary, Ariel, and Julie From: GNSO-RPM-WG <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Thursday, September 17, 2020 at 4:49 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [GNSO-RPM-WG] REMINDER Re: Final draft language about GIs in TMCH - 14 September 2020 Dear Working Group members, As a reminder please see the attached document and the action item below. Please review the draft language and post any questions or comments you may have to this mailing list by Monday, 21 September following which staff will incorporate the final text into the set of final recommendations for the formal consensus call. Kind regards, Mary, Ariel, 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, September 14, 2020 at 3:25 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [GNSO-RPM-WG] Final draft language about GIs in TMCH - 14 September 2020 Dear Working Group members, An action item from the Working Group meeting of 6 August was for staff to work with Rebecca and Paul Tattersfield to refine draft text for an agreed recommendation concerning the scope of marks to be accepted into the Trademark Clearinghouse (TMCH). The text was to include clarifications as to the continued availability of ancillary services for other signs (such as geographical indications) that would, however, not be eligible for the mandatory RPMs (Sunrise and Trademark Claims). With thanks to Rebecca and Paul for their redrafts and explanations, please find attached the proposed final text for this recommendation. Given the extensive discussion that this topic has gone through at the Working Group level, please review the draft language and post any questions or comments you may have to this mailing list by Monday, 21 September following which staff will incorporate the final text into the set of final recommendations for the formal consensus call. Kind regards, Mary, Ariel, and Julie

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Proposed Agenda for RPM PDP WG Meeting - Thursday, 24 September 17:00 UTC
by Julie Hedlund Sept. 23, 2020

Sept. 23, 2020

Dear RPM WG members, Please find the updated proposed agenda for the full WG meeting on Thursday, 24 September at 17:00 UTC for 90 minutes. Draft Proposed Agenda: 1. Review Agenda and Updates to Statements of Interest 2. Update on ALP Recommendation – Inquiry with GDS staff 3. URS Final Recommendations – Revised URS Recommendation #4; see: https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMP… [docs.google.com] [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1huKNcgg3VAk9…> 4. URS Final Recommendations – URS Recommendation #3, page 10; see: https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMP… [docs.google.com] [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1huKNcgg3VAk9…> 5. Overarching Data Collection Recommendation (final wording pending input from ICANN org operational team); see: https://docs.google.com/document/d/1Yg6XP1USJFK7Ko5eQFD5EGNC4gwWM-vh07MGSqJ… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1Yg6XP1USJFK7…> 6. AOB Proposed Co-Chair rotation for chairing the meeting: Phil Corwin Scheduled for Tuesday, 29 September: WG discussion of Sunrise Recommendation #2 and the original Implementation Guidance language, to be followed by a separate discussion of the Sub Team 2 suggested Implementation Guidance language. As a reminder, here is a link to Sunrise Recommendation #2 and the original Implementation Guidance language:https://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3f… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/12w5W2bQcviAq…>. Also as a reminder, here is the proposed Implementation Guidance language for Sunrise Recommendation #2 from Small Team 2: Suggestion Language from Small Team 2: “Implementation Guidance to Sunrise Recommendation 2: The IRT should explore the possibility of a third party challenge mechanism as one of the possible means, among others (for example, direct enforcement by ICANN Compliance) to implement this Recommendation to enforce the implementation of this recommended new RA provision. Any such third party challenge mechanism should include appropriate safeguards for registries.” Best Regards, Mary, Julie, Ariel

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Post Call | Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG | Tuesday, 22 September 2020 at 13:00 UTC
by Julie Bisland Sept. 22, 2020

Sept. 22, 2020

Dear all, All recordings for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG call held on Tuesday, 22 September 2020 at 13:00 UTC can be found on the agenda wiki page<https://community.icann.org/x/wQG-C> 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 <https://mm.icann.org/pipermail/gnso-rpm-wg/> and the main wiki page<https://community.icann.org/x/wCWAAw>. Thank you. Kind regards, Julie

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Notes and Action Items: RPM PDP WG Meeting 22 September 2020
by Julie Hedlund Sept. 22, 2020

Sept. 22, 2020

Dear All, Please see below the action items captured by staff from the RPM PDP Working Group call held on 22 September 2020 at 13:00 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/2020-09-22+Review+of+all+R…. Best Regards, Julie Julie Hedlund, Policy Director == NOTES & ACTION ITEMS Actions: Overarching Data Collection Recommendation: ACTION ITEM: Add a footnote to explain what are the abuse labels. ACTION ITEM: Staff to revise the recommendation based on the WG discussion. URS Recommendation #4: ACTION ITEM: Add in the context that the recommendation is not asking IRT to review previous URS cases related to compliance matters. ACTION ITEM: Add text in brackets: “ICANN org’s public comment confirmed that enforcing compliance against Providers falls outside the scope of its [current] Compliance process.” Also clarify that the point of the recommendation is that ICANN org doesn’t have a way to enforce compliance. Add clarifying language on who can enforce MOUs with providers. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Overarching Data Collection Recommendation (final wording pending input from ICANN org operational team); see:https://docs.google.com/document/d/1Yg6XP1USJFK7Ko5eQFD5EGNC4gwWM-vh07M… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1Yg6XP1USJFK7…> Background: -- Although there was some data for the WG to review, it was determined that it would be helpful to make a recommendation about collecting data. -- The CCT-RT also recommended a number of data collection efforts that ICANN should engage in, that cover more than just RPMs. -- Taking those two points together the staff has prepared draft text for the WG to review. -- This is an overarching recommendation covering all of the RPMs, but not decided where it will appear in the report. Discussion: -- Re: “In light of the recommendations from the Competition, Consumer Protection & Consumer Trust (CCT) Review Team, the Working Group recommends that questions aimed at soliciting concrete and specific data relating to trademark owners’/agents’ and registrants’ experiences with the Sunrise and Trademark Claims RPMs in subsequent new gTLD rounds be included in the following data collection work, as appropriate:” Question: What do we mean by “as appropriate”. Answer: As of yet we don’t know what the implementation will be for the final CCT-RT recommendations. -- On the last 4 bullet points: Example Rec #11 – not directed at RPMs. Maybe that shouldn’t be included. And #26, which is geared towards collection of costs required to protect trademarks – get the view of the team on timeframes. Helpful to get more detail. -- Seems like we are making recommendation relating to CCT-RT recommendations that none of us have looked at. -- Staff erred on the side of being inclusive, to phrase the recommendation in such a way that if you wanted to drop one or more bullet points, or drop the recommendation on CCT-RT, you could do that without affecting the initial recommendation. -- The recommendation is that the WG would like RPMs to be included in future data collection work, but we don’t want to be specific on how that would be done. -- Consider removing Rec #8. Maybe it is a SubPro Rec? -- This is a follow-up action that staff had to produce a data collection recommendation. -- CCT-RT recommendations: https://www.icann.org/en/system/files/files/cct-final-recs-08sep18-en.pdf -- Separate out the CCT-RT recommendation. -- Should add data collected relating to trademark claims notices. Claims notice could be addressed in the Rec #11 survey. -- CCT Rec 11: “Conduct periodic end-user consumer surveys. Future review teams should work with survey experts to conceive more behavioral measures of consumer trust that gather both objective and subjective data with a goal toward generating more concrete and actionable information.” -- The CCT completed its work in Sept 2018 and the Board decided to adopt some of its recommendations, referred others to various constituent bodies (e.g. GNSO) and deferred action on the remainder. -- Need to be as specific as possible on the exact data we are seeking. -- Timing: Made sense for the WG to consider this after reviewing all other recommendations. -- This is not an individual proposal, it is a staff action based on a WG request. -- On trademark claims notices—surveys; if you are going to get pings from TMCH that data as the Analysis Group found is relatively inaccurate because it doesn’t show the actual number of claims sent. The only group from whom you can get data on the number of notices actually sent is the registrars: There is no way to compel registrars to do that. And that would be an entirely new recommendation that would need at a minimum a review by registrars and/or public comment. -- On Trademark Claims, not sure how meaningful data would be collected -- registrars don't know identity of the potential registrant who terminates registration after receiving Claims Notice, or why they did. -- Only way I could see of collecting the TM notices data would be to mandate all registrars to present a survey as part of the registration flow if someone receives a notice then does not complete the purchase… if this is technologically possible. -- Most registrars did not submit claims notices until the domain names were in a specific shopping cart. Therefore, I believe the registrars would know their identity. Whether they store that information or not is an entirely different question. -- On the CCT-RT recommendations – say that these could be brought to the attention of the appropriate groups. -- On Recs #26 and #28 – the appropriate group is the RPMs PDP WG. -- Registrars don’t know if there is a claims notice, so we query the registry every time there is a claims notice. -- Data related to Trademark Claims notices - Registry relies on the certification from the registrar who presented the notices; registry never knows if/when an actual notice goes out or the registrant has received the notice - Registry goes to TMCH to get the notice and provides an ID to the registrar. They don't need to ping the TMCH every single time as they can cache it. - Registrar would know those registrants who accepted the notice and purchased the domain. - Obtaining the data/survey related to why a registrant abandons the registration after seeing the notice would add a specific obligation to registrars. ACTION ITEM: Add a footnote to explain what are the abuse labels. ACTION ITEM: Staff to revise the recommendation based on the WG discussion. 3. URS Final Recommendations – start at page 5, URS Recommendation #4; see: https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMP… [docs.google.com] [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1huKNcgg3VAk9…> a. URS Recommendation #4: Discussion: -- Context: New language reflects the WG deliberation on public comments. -- Giving a lot to the IRT to do. -- IRT needs to find out how ICANN org does enforce this. ACTION ITEM: Add in the context that the recommendation is not asking IRT to review previous URS cases related to compliance matters. ACTION ITEM: Add text in brackets: “ICANN org’s public comment confirmed that enforcing compliance against Providers falls outside the scope of its [current] Compliance process.” Also clarify that the point of the recommendation is that ICANN org doesn’t have a way to enforce compliance. Add clarifying language on who can enforce MOUs with providers. b. URS Recommendation #6: Discussion: -- Question: Wondering if this portion of the new language is redundant: "1) reaching out to the broader multistakeholder community, including Providers/experts, to assist ICANN org and the IRT to develop those educational materials”, Since the recommendation already states "developed with help from URS Providers, Practitioners, Panelists, as well as researchers/academics who study URS decisions closely". Answer: This is what the WG agreed to include, it arose directly from the public comments. Okay to leave as is. -- Question: Do we want the IRT to develop the educational materials? Answer: This is what the WG recommended. -- WG agrees to the recommendation as it is worded. c. URS Recommendation #10: Discussion: -- Additional details in the context were included from the public comments, based on the WG’s deliberation. -- WG agrees to the recommendation and context as it is worded. d. URS Recommendation #3: Discussion: -- Context reflects the WG’s discussion of the EPDP Wave 1 Report. -- Language suggests there is no obligation to send the notice – need to clarify that what we mean is that the notice should be sent when the contact info is disclosed. -- Add the intent of the recommendation -- it is not sufficient just to send the notice to the publicly available information with the aim of achieving actual notice. -- Could remove the bullet points, but the above paragraph also would have to be altered. -- Continue this discussion on the next call.

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Proposed Agenda for RPM PDP WG Meeting - Tuesday, 22 September 13:00 UTC
by Ariel Liang Sept. 18, 2020

Sept. 18, 2020

Dear RPM WG members, Please find the updated proposed agenda for the full WG meeting on Tuesday, 22 September at 13:00 UTC for 90 minutes. Draft Proposed Agenda: 1. Review Agenda and Updates to Statements of Interest 2. Overarching Data Collection Recommendation (final wording pending input from ICANN org operational team); see: https://docs.google.com/document/d/1Yg6XP1USJFK7Ko5eQFD5EGNC4gwWM-vh07MGSqJ… 3. URS Final Recommendations – start at page 5, URS Recommendation #4; see: https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMP… [docs.google.com]<https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMP…> 4. AOB Proposed Co-Chair rotation for chairing the meeting: Kathy Kleiman Best Regards, Mary, Julie, Ariel

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ACTION ITEM: Sunrise Recommendation #2 and Small Team 2 Suggested Language:
by Julie Hedlund Sept. 17, 2020

Sept. 17, 2020

Dear All, Please see the action item below from the WG meeting on 17 September: Sunrise Recommendation #2 and Small Team 2 Suggested Language: ACTION ITEM: Discuss WG suggested revisions to the Recommendation and Implementation Guidance along with the suggested language from Small Team 2. Please see the suggested revisions to Sunrise Recommendation #2 in the Google document at: https://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQyEW…. Please also review the following Suggested Language from Small Team: Suggestion Language from Small Team 2: “Implementation Guidance to Sunrise Recommendation 2: The IRT should explore the possibility of a third party challenge mechanism as one of the possible means, among others (for example, direct enforcement by ICANN Compliance) to implement this Recommendation to enforce the implementation of this recommended new RA provision. Any such third party challenge mechanism should include appropriate safeguards for registries.” Please post any comments or questions for discussion to this list ASAP. Kind regards, Mary, Ariel, and Julie From: GNSO-RPM-WG <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Thursday, September 17, 2020 at 2:49 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [GNSO-RPM-WG] Notes and Action Items: RPM PDP WG Meeting 17 September 2020 Dear All, Please see below the action items captured by staff from the RPM PDP Working Group call held on 17 September 2020 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/2020-09-17+Review+of+all+R…. Best Regards, Julie Julie Hedlund, Policy Director == NOTES & ACTION ITEMS Actions: Sunrise Recommendation #2 and Small Team 2 Suggested Language: ACTION ITEM: Discuss WG suggested revisions to the Recommendation and Implementation Guidance along with the suggested language from Small Team 2. Suggested Language from Small Team 1 on ALP relating to Sunrise Questions #3 and #4: ACTION ITEM: Staff will check with GDS to see if this recommendation is feasible. URS Final Recommendation (was #1): ACTION ITEM: Minor change in the contextual language – change from “the Working Group affirms” to “the Working Group further notes”. New URS Final Recommendation: ACTION ITEM: Remove the quoted text from Purpose 6-PA5 and move it to a footnote for reference. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Sunrise Recommendation #2 and Small Team 2 Suggested Language; see: Suggested Language from Small Team 2<http://mm.icann.org/pipermail/gnso-rpm-wg/2020-September/004503.html> andhttps://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQ… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/12w5W2bQcviAq…> -- Concerns raised by Maxim Alzoba about the two examples that they are too broad. -- Further to my point, as was noted earlier, this is a high-level policy recommendation; the IRT will be tasked with implementing this recommendation and our guidance should be sufficient to allow the IRT to craft an appropriately tailored RA amendment and (hopefully a challenge mechanism with appropriate safeguards built in so as to not inhibit legitimate registry activities -- I agree (I think) with Jason insofar as implementing this recommendation may necessitate a third party challenge mechanism akin to the PDDRP or pICDRP so aggrieved TM owners can challenge a registry activity and there can be a ruling as to whether the activity is legitimate or not. -- Concerns about misinterpretation if we are not clear. -- Perhaps we can just add a third bullet that says, “registry activities that have a bona fide legitimate basis or rationale are explicitly not intended to be inhibited by this provision”. -- As a staff suggestion for your consideration — perhaps we can include something to this effect: “The Working Group notes that this recommendation is not intended to preclude or restrict Registry operator’s legitimate business practice and pricing practice that are compliant with ICANN policies and procedures.”? -- Add to bullet point 1 (slightly revised)-- adding: "without countervailing rationale and/or reasonable activity by registries, including handling of dictionary terms.” -- Suggest addition to the Recommendation: “The Working Group recommends that the Registry Agreement for future new gTLDs include a provision stating that a Registry Operator shall not operate its TLD in such a way as to have the effect of [intentionally] circumventing the mandatory RPMs imposed by ICANN or restricting brand owners’ reasonable use of the Sunrise rights protection mechanism.” Text in brackets. -- Don’t think adding “intentionally” in the rec helps us because it doesn’t really address Maxim’s concern, because reserving a name intentionally as part of an ALP or something is still intentional. ACTION ITEM: Discuss suggested language from Small Team 1 on the list. Suggestion Language from Small Team 2: “Implementation Guidance to Sunrise Recommendation 2: The IRT should explore the possibility of a third party challenge mechanism as one of the possible means, among others (for example, direct enforcement by ICANN Compliance) to implement this Recommendation to enforce the implementation of this recommended new RA provision. Any such third party challenge mechanism should include appropriate safeguards for registries.” -- Why would the proposed additional implementation guidance language be a beneficial addition to the existing implementation guidance? Answer: Takes some of the burden off of Compliance. -- Does the phrase “explore the possibility of a third party challenge mechanism” encompass and authorize the IRT’s adoption and implementation of such a mechanism if it is found to be possible? Answer: To amend the language to “explore and if possible implement”. -- Would the challenge mechanism be operative against ICANN, a registry alleged to have circumvented a RPM, or both? Answer: It would be against the registry that is alleged to have circumvented it. There already is a way to challenge staff and Board actions. -- This would not be a mechanism as a way for ICANN Org Compliance to enforce – this would be a separate mechanism? Answer: Correct. Discussion: -- Opposed to this language. Sunrise Rec #2 itself is still vague. -- Registries agree by contract to comply, but IRTs cannot develop consensus policies or revise contract terms – so this is out of scope. -- This is putting one vagueness on top of another. -- What authority does an IRT have to do these types of things. -- Didn't an IRT create the URS, PDDRP, PICDRP, to name a few? -- Sunrise Rec #2 seems to beg for a third-party challenge mechanism. -- 1. Clause could include a clause to include a challenge mechanism. 2. IRTs do this sort of thing all the time (e.g. the AGB and all of the challenge mechanisms with it). -- Idea is that there would be an independent panel that an aggrieved party could go to – so not relying on ICANN Compliance and could be an independent review. -- Why isn't a complaint to ICANN compliance sufficient here? I agree with David that it's especially problematic to move from "vague standard applied by single decisionmaker" to "vague standard applied by various possible decisionmakers" -- Would this be a time-sensitive mechanism? -- Because in response to the complaints over the years on sunrise circumvention, ICANN has consistently said they could do nothing about it. -- Circumvention itself is not defined, so cannot be enforced. -- ICANN compliance would need to have a role, in a similar way it does in a PICDRP for instance; an independent panel would actually perform the substantive review and ICANN compliance would implement a panel finding, for example. -- If Rec 2 is "start doing something about it" then why isn't ICANN compliance the appropriate place? -- URS and PDDRP are not Consensus Policy either. They were created during implementation of the 2007 GNSO PDP on New gTLDs. -- Divergence in the WG on this suggested text. ACTION ITEM: Discuss the suggested language on the list. 3. Suggested Language from Small Team 1 on ALP relating to Sunrise Questions #3 and #4; see: http://mm.icann.org/pipermail/gnso-rpm-wg/2020-September/004505.html “The Working Group recommends guidance to the Implementation Review Team that the Approved Launch Program (ALP) Application Review Guidelines be reviewed and clarified in order to address feedback obtained by the working group regarding the length of time and complexity of process involved in seeking to obtain approval for an ALP, and in particular recommends that the IRT consider the following: 1. Where ICANN can not make a determination regarding an ALP application it will notify the Registry Operator to that effect within 45 days stating explicit reasons for needing more time and further, provide a decision date projection plan within a time period not to exceed another 30 days. There should be a reasonable expectation that all negotiations should be completed within a 7 month period. 2. Where ICANN determines to decline an ALP application or make a request for further information ICANN will include a full explanation of the aspects of the ALP application ICANN deems to be acceptable and the aspects ICANN deems to be unacceptable.” Discussion: -- The reference to an ALP being adopted is in the TMCH procedures if approved it is outside of or in contravention of Sunrise. This is directly related to the operation of the Sunrise. -- TMCH RPMs Requirements document that is incorporated by reference into the AGB and the RA (http://newgtlds.icann.org/en/about/trademark-clearinghouse/rpm-requirements…) 4.5 deals with Launch Programs, specifically 4.5.2: Registry Operator MAY, prior to the start date of its Sunrise Period, apply to ICANN for approval to conduct a registration program not otherwise permitted by these TMCH Requirements. Such a registration program application could, for example, provide for authorization to implement programs set forth in Registry Operator’s application for the TLD, which, if set forth in reasonable detail in the application for the TLD, will carry a presumption of being approved, unless ICANN reasonably determines that such requested registration program could contribute to consumer confusion or the infringement of intellectual property rights. If Registry Operator seeks ICANN’s approval of a program under this Section 4.5.2, and such requested registration program is substantially similar to a...” ACTION ITEM: Staff will check with GDS to see if this recommendation is feasible. 4. URS Final Recommendations; see: https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMP… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1huKNcgg3VAk9…> a. URS Final Recommendation (was #1): -- Recommendation language stays as is. -- Contextual language – inserted text to reflect the WG’s agreement to include the EPDP Phase 1 Recommendation #27 Wave 1 Report. ACTION ITEM: Minor change in the contextual language – change from “the Working Group affirms” to “the Working Group further notes”. b. New URS Final Recommendation: -- This is based on URS Question 1. -- It is a new recommendation based on responses received in the public comment. -- The context comes from the WG discussion of URS Question 1. -- The public comment review is based on the discussion of URS Question 1 and suggestion for a recommendation. Discussion: -- Questions about the contextual language. Concern that the reference to Purpose 6-PA5 is somehow binding. -- Staff noted that it is not binding and there was no change to the new recommendation resulting from the WG’s review of the ICANN org’s EPDP Phase 1 Recommendation #27 Wave 1 Report. ACTION ITEM: Remove the quoted text from Purpose 6-PA5 and move it to a footnote for reference.

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REMINDER Re: Final draft language about GIs in TMCH - 14 September 2020
by Julie Hedlund Sept. 17, 2020

Sept. 17, 2020

Dear Working Group members, As a reminder please see the attached document and the action item below. Please review the draft language and post any questions or comments you may have to this mailing list by Monday, 21 September following which staff will incorporate the final text into the set of final recommendations for the formal consensus call. Kind regards, Mary, Ariel, 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, September 14, 2020 at 3:25 PM To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [GNSO-RPM-WG] Final draft language about GIs in TMCH - 14 September 2020 Dear Working Group members, An action item from the Working Group meeting of 6 August was for staff to work with Rebecca and Paul Tattersfield to refine draft text for an agreed recommendation concerning the scope of marks to be accepted into the Trademark Clearinghouse (TMCH). The text was to include clarifications as to the continued availability of ancillary services for other signs (such as geographical indications) that would, however, not be eligible for the mandatory RPMs (Sunrise and Trademark Claims). With thanks to Rebecca and Paul for their redrafts and explanations, please find attached the proposed final text for this recommendation. Given the extensive discussion that this topic has gone through at the Working Group level, please review the draft language and post any questions or comments you may have to this mailing list by Monday, 21 September following which staff will incorporate the final text into the set of final recommendations for the formal consensus call. Kind regards, Mary, Ariel, and Julie

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Post Call | Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG | Thursday, 17 September 2020 at 17:00 UTC
by Andrea Glandon Sept. 17, 2020

Sept. 17, 2020

Dear all, All recordings for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG call held on Thursday, 17 September 2020 at 17:00 UTC can be found on the agenda wiki page<https://community.icann.org/x/zwG-C> 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 <https://mm.icann.org/pipermail/gnso-rpm-wg/> and the main wiki page<https://community.icann.org/x/wCWAAw>. Thank you. Kind regards, Andrea

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