September 2020 - GNSO-RPM-WG

Notes and Action Items: RPM PDP WG Meeting 17 September 2020
by Julie Hedlund Sept. 17, 2020

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

Sept. 17, 2020

Dear RPM WG members, Please find the proposed agenda for the full WG meeting on Thursday, 17 September at 17:00 UTC for 90 minutes. Draft Proposed Agenda: 1. Review Agenda and Updates to Statements of Interest 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> and https://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQyEW… 3. Suggested Language from Small Team 1 on ALP relating to Sunrise Questions #3 and #4 (TBD) 4. URS Final Recommendations; see: https://docs.google.com/document/d/1huKNcgg3VAk95oybb-7u9papLZ4kEMUHNQNElMP… 5. AOB Proposed Co-Chair rotation for chairing the meeting: Phil Corwin. Best Regards, Mary, Julie, Ariel

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Suggested Language from Small Team 1 on ALP relating to Sunrise Questions #3 and #4
by Paul Tattersfield Sept. 16, 2020

Sept. 16, 2020

Dear RPM WG members, Please find below suggested Language from Small Team 1 on ALP relating to Sunrise Questions #3 and #4 (Item 3 on our proposed draft agenda) 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. Best regards, Paul

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Suggested Language from Small Team re: Sunrise Recommendation #2
by Julie Hedlund Sept. 16, 2020

Sept. 16, 2020

Dear WG members, Please see below for your consideration suggested language from Small Team 2 for Implementation Guidance related to Sunrise Recommendation #2. This item will be on the agenda for discussion during the WG meeting tomorrow, Thursday, 16 September at 17:00 UTC. 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.” For reference, see Sunrise Recommendation #2 at: https://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQyEW…. Kind regards, Mary, Ariel, and Julie

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Notes and Action Items: RPM PDP WG Meeting 15 September 2020
by Julie Hedlund Sept. 15, 2020

Sept. 15, 2020

Dear All, Please see below the action items captured by staff from the RPM PDP Working Group call held on 15 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/2020-09-15+Review+of+all+R…. Best Regards, Julie Julie Hedlund, Policy Director == NOTES & ACTION ITEMS Actions: TM Claims Final Recommendation #5 ACTION ITEM: Reference the previous footnote that describes Spec 13 and Spec 9. Notes: 1. Updates to Statements of Interest: No updates provided. 2. TM Claims Final Recommendations #4 and #5; see revisions at: https://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQyEW… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/12w5W2bQcviAq…> TM Claims Final Recommendation #5 -- Changed the placement of the recommendation as a New Policy Recommendation. -- Insert in parenthesis what Spec 13 and Spec 9 are. ACTION ITEM: Reference the previous footnote that describes Spec 13 and Spec 9. TM Claims Final Recommendation #4: -- Removed the sentence on the exemption language in the recommendation because this is addressed in Rec #5. -- Minor change in the contextual language – reference the status quo. 3. TMCH Final Recommendation #1; see: https://docs.google.com/document/d/1y1MOiUU4G4_mzbte75RGXp22JT13k0Sym4OgwpC… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1y1MOiUU4G4_m…> -- The WG accepts the edits arising from the discussion of the public comments; there are no further changes. 4. TM-PDDRP Final Recommendation; see: https://docs.google.com/document/d/1y1MOiUU4G4_mzbte75RGXp22JT13k0Sym4OgwpC… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1y1MOiUU4G4_m…> -- No change in the recommendation from what was published in the Initial Report, after review of the public comments. 5. AOB – Small Team on Sunrise Questions #3-#5 -- Small Team met but during that brief meeting no one suggested recommendation text. -- Paul Tattersfield subsequently suggested text, but one Small Team member expressed concerns with it and there were no other expressions of support. -- Paul Tattersfield may suggest alternative text. Not clear if the Small Team will support as the text has not been circulated. The Co-Chair and staff made the following points: (1) the WG has discussed the ALP extensively, both for the Initial Report (with no conclusion or recommendation) and in reviewing the public comments; (2) they thought the comments warranted a Small Team but it is clear the Small Team did not uncover a new issue or a solution; (3) as the problem remains what was identified early on and no solution has been proposed throughout the life of the WG or via the comments and Small Team work, this is not new and in fact may be out of scope (seeing how the WG treated other voluntary mechanisms). -- Finally, the Co-Chair emphasized that even with the Project Change Request being considered by the GNSO Council the WG does not have time to reopen or reconsider closed issues, and thus without agreement from the Small Team on recommendation text this item should remain closed.

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Post Call | Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG | Tuesday, 15 September 2020 at 13:00 UTC
by Julie Bisland Sept. 15, 2020

Sept. 15, 2020

Dear all, All recordings for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG call held on Tuesday, 15 September 2020 at 13:00 UTC can be found on the agenda wiki page <https://community.icann.org/x/vwG-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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Proposed Agenda for RPM PDP WG Meeting - Tuesday, 15 September 13:00 UTC
by Julie Hedlund Sept. 14, 2020

Sept. 14, 2020

Dear RPM WG members, Please find the updated proposed agenda for the full WG meeting on Tuesday, 15 September at 13:00 UTC for 90 minutes. Draft Proposed Agenda: 1. Review Agenda and Updates to Statements of Interest 2. TM Claims Final Recommendations #4 and #5; see revisions at: https://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQyEW… [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/12w5W2bQcviAq…> 3. Update from Small Team 2 and Sunrise Recommendation #2: https://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQyEW… 4. TMCH Final Recommendations; see: https://docs.google.com/document/d/1y1MOiUU4G4_mzbte75RGXp22JT13k0Sym4OgwpC… 5. TM-PDDRP Final Recommendation; see: https://docs.google.com/document/d/1y1MOiUU4G4_mzbte75RGXp22JT13k0Sym4OgwpC… 6. AOB Proposed Co-Chair rotation for chairing the meeting: Brian Beckham. Best Regards, Mary, Julie, Ariel

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

Sept. 14, 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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RPMs PDP WG Project Change Request (PCR) to Extend Timeline to Deliver Final Report
by Corwin, Philip Sept. 11, 2020

Sept. 11, 2020

>From the RPMs PDP WG Co-Chairs to WG members: Subject: RPMs PDP WG Project Change Request (PCR) to Extend Timeline to Deliver Final Report To: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Dear WG members, As mentioned during the WG meeting this past Tuesday (September 8), the RPMs PDP WG Co-Chairs and Council Liaison were reluctantly considering submission of a Project Change Request (PCR) to extend the timeline to deliver the WG's Final Report to the GNSO Council. The Co-Chairs have since then met with the Council Liaison and ICANN support Staff and - notwithstanding concerns having been raised that any extension could unintentionally lead to re-litigating closed issues and eliciting open-ended debates - it was agreed that a PCR requesting an extension of 40 days was necessary. The co-chairs are committed to assuring that this extension is used to complete our final work and is not wasted or abused. If granted by Council, this will mean the due date for delivery of the PDP Final Report will shift from mid-October to the end of November. It will also represent the tenth change in the PDP timeline since the PDP was launched in February 2016. As such, we must be absolutely confident that the WG commits to meet the new deadline since the GNSO Council is unlikely to entertain requests for any additional extensions. The Co-Chairs note that this proposed extended timeframe will not allow time for a supplemental public comment period on any new proposals or recommendations. Therefore, any new proposals will need to meet the standard for consideration in the consensus call (broad support and minimal opposition) and will also need to be agreed as not requiring public comment, in order to be considered as WG recommendations for inclusion in the Final Report. Despite the requested extension, the Co-Chairs agree that maintaining an aggressive schedule of twice weekly meetings remains critical to meet the new goal of delivery of the Final Report by the end of November 2020. In this regard, we request that WG members remain mindful of the WG Guidelines, in particular insofar as those call for WG members to refrain from reopening closed discussions, and at the same require WG members to time be informed on and keep up with deliberations as we move toward finalizing our report and a formal consensus call; notably, this latter provision includes WG members who have not been active participants during the course of our work. In turn, the Co-Chairs and Staff will work to give the WG adequate time to review new and revised documents and materials. The Co-Chairs thank the WG members for their commitment and diligence in helping us to achieve our shared goal of completing Phase I of this PDP within the (new) time frame that will hopefully be approved by Council. Kind regards, Brian Beckham Phil Corwin Kathryn Kleiman RPMs PDP WG Co-Chairs Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey

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Post Call | Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG | Thursday, 10 September 2020 at 17:00 UTC
by Andrea Glandon Sept. 10, 2020

Sept. 10, 2020

Dear all, All recordings for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDS PDP WG call held on Thursday, 10 September 2020 at 17:00 UTC can be found on the agenda wiki page<https://community.icann.org/x/zQG-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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