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FW: [council] Letter from RPM PDP co-chairs on GDPR & domain name dispute resolution
by Mary Wong May 15, 2018

May 15, 2018

Dear all, For your information and at the request of the co-chairs, the attached letter and UDRP/URS table – the final versions of which were revised based on comments received from Working Group members on this mailing list – has been sent to the GNSO Council. As indicated on the cc line of the letter, a copy has been forwarded to the secretariats for the Registries and Registrars Stakeholder Groups as well as the BC, IPC and ECO. Thanks and cheers Mary, Julie & Ariel From: council <council-bounces(a)gnso.icann.org> on behalf of Mary Wong <mary.wong(a)icann.org> Date: Monday, May 14, 2018 at 21:07 To: "council(a)gnso.icann.org" <council(a)gnso.icann.org> Subject: [council] Letter from RPM PDP co-chairs on GDPR & domain name dispute resolution Dear Councilors, Please find attached, for your review and discussion, a letter from the co-chairs of the Review of All Rights Protection Mechanisms (RPMs) Policy Development Process Working Group relating to the impact of the General Data Protection Regulation (GDPR) on the provision of domain name dispute resolution services under the Uniform Domain Name Dispute Resolution Policy (UDRP) and the Uniform Rapid Suspension procedure (URS). The letter references and includes an attachment containing relevant provisions of the UDRP and URS Procedures and Rules that may, and in some cases do, involve the use of Whois and personal data in proceedings brought under these processes. The attachment can also be viewed as a Google Sheet via this link: https://docs.google.com/spreadsheets/d/1npMYgAvm9uILCfymewqae_ib6uuqDM_cpBc… [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_spread…> Please let us know if you have any questions or follow up for the Working Group or its co-chairs. Thanks and cheers Mary, Julie & Ariel

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RPM PDP Working Group Co-Chair Selection
by Julie Hedlund May 12, 2018

May 12, 2018

Dear Working Group members, On behalf of the RPM PDP Working Group Co-Chairs, the Working Group has selected Brian Beckham as a Co-Chair of the Working Group via consensus and with one objection from George Kirikos. Per section 2.1.4.2 of the GNSO Working Group Guidelines (https://gnso.icann.org/en/council/annex-1-gnso-wg-guidelines-30jan18-en.pdf…) a Working Group Co-Chair will need to be confirmed by the Chartering Organization, which in this case is the GNSO Council. Thus, Phil and Kathy, along with Paul McGrady as the RPM PDP Working Group Liaison to the GNSO Council, will request that the Council include on the consent agenda for its meeting on 24 May consideration of Brian as RPM PDP Working Group Co-Chair. Also, as noted in the Working Group Guidelines, “The newly elected Chair will act on a provisional basis until the Chartering Organization has confirmed the appointment.” Accordingly, Kathy, Phil, and Paul welcome Brian as provisional Co-Chair of this Working Group. Best, Mary, Ariel, Berry, and Julie

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Recording, Attendance, & WebEx Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Wednesday, 09 May 2018
by Julie Bisland May 9, 2018

May 9, 2018

Dear all, Please find the attendance and Webex Chat attached to this email, and the MP3 recording below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Wednesday, 09 May 2018 at 17:00 UTC. Attendance and recording of the call is also posted on agenda wiki page: https://community.icann.org/x/-RMFBQ MP3: https://audio.icann.org/gnso/gnso-rpm-review-09may18-en.mp3 The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/ Main wiki page for the working group: https://community.icann.org/x/wCWAAw Kind Regards, Julie

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Actions & Notes: RPM PDP WG 09 May 2018
by Julie Hedlund May 9, 2018

May 9, 2018

Dear All, Please see below the action items and brief notes captured by staff from the Working Group call held on 09 May 2018 (1700 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 transcript or recording. The recording, transcript, WebEx chat, and attendance records are posted on the wiki. Best Regards, Julie Julie Hedlund, Policy Director Action Items: Co-Chair Nomination: Co-Chairs will send a message to the list indicating that there was consensus on the selection of Brian Beckham and noting that George Kirikos raised an objection. Meetings: 1) Staff will reiterate that observers may not attend the WG meetings and should not receive meeting notices. They do have access to the wiki, transcripts, and recordings. 2) Staff will cancel the calls on 16 and 23 May. Notes: 1. Co-Chair Nomination -- Procedure: Item goes on the Council’s consent agenda for the next meeting on 24 May. -- The request would go from Paul McGrady the Liaison, Kathy and Phil. -- Co-Chairs will notify the WG on the list that the request will go to the Council noting that there was consensus on the selection of Brian and list George as an objection. 2. Presentation of Research from Rebecca Tushnet See: https://www.dropbox.com/s/1dodxsqkauqp1vr/URS%20Case%20Review%20-%20Final.x… Discussion: -- Important: the effect of the TMCH and claims notice. -- The people who don’t litigate or arbitrate are the key missing people hear. -- Suggest that this file is reformatted to remove personal data re: GDPR. -- The lack of rationale: Is what you are saying that there is nothing? Or is it that I’m satisfied the name is registered in bad faith but nothing saying why? Answer: Some examiners >From the chat: -- From David McAuley: Rebecca, just curious if you know, did examiners stick to one URS-provider or did they provide examiner-services through more than one provider. I would be interested, for example, if an examiner gave reasons for one provider but not for another. Answer: Did not do that analysis. Should be easy to do. 3. Continued discussion of URS Phase II proposal -- Charter is clear that Phase One focuses on the new gTLD RPMs, which includes URS. -- Initial Report has to contain any preliminary recommendations, but not all. It also has to highlight any issues or recommendations to be considered by the Subsequent Procedures WG. -- Phase Two will also consider the Phase One Initial Report. -- If we don’t change the charter we need to focus on URS in Phase One and do an assessment of its effectiveness. If we find operational issues, such as rules that don’t make sense, those should be in Phase One. But if we decide a policy issue should be deferred to Phase Two, say because of GDPR or because we can’t reach consensus we have flexibility under this charter to put those issues into Phase Two. -- The charter has certain requirements we have to meet and does give us flexibility to defer issues to Phase Two. Discussion: -- Good idea to have a discussion to have certain parts of URS deferred without having to do a charter change. Didn’t want to spend too much time on parts of the URS that are impacted by GDPR. If we can be flexible then we might be able to address these issues without a charter change. -- The second part of the proposal was to make changes to how the WG operates – how we can improve and scope out our work and develop processes to complete the goals of the WG. -- Could use some time in Panama to strategize for how best to operate. -- In order to assess the effectiveness of the URS we will have to review the URS – can we do that? -- Not sure why GDPR should change the order of Phase One and Phase Two. -- General agreement to keep the current order of Phase One and Phase Two and schedule time at ICANN62. -- John McElwaine has offered to rework the proposal. >From the chat: -- from Philip Corwin to All Participants: Between Berry and Dr. Tushnet's case analysis, and review of the answers to Providers and Practitioners questions, we will certainly have conducted a very full review of the URS. That doesn't mean we have to decide every URS policy issue in Phase 1. And in fact if we don't have a consensus on any policy issue it will be effectively be deferred to Phase 2 and can be revisited then. -- from Martín Silva to All Participants: +1 Phil, that seems more reasonable. -- from Cyntia King to All Participants: @Phil - isn't that what @Susan Payne has been saying? That we can review the URS data then move review to be concurrent w/ UDRP? -- from Philip Corwin to All Participants: @Cyntia--close. We can collectively decide what URS issues to address in Phase 1 and which to defer in Phase 2 so long as we have focused on it and have included an informed assesment of its effectiveness in the Initial Report. Does not have to be all or nothing. -- from Cyntia King to All Participants: @Phil - It may be the collective decision that's problematic. -- from John McElwaine to All Participants: @Maxim - thank you. My point exactly concerning GDPR. We don't know and will not for an unknown period of time. -- from Maxim Alzoba (FAITID) to All Participants: for example transfer of domain requires to know e-mail of the registrant ... and it is going to be an issue -- from Philip Corwin to All Participants: The default position is that if we can't agree on an issue then we likely lack consensus and there will be no recommendation in the Initial Report -- and it will be deferred for (possible) resolution in Phase 2. -- from Maxim Alzoba (FAITID) to All Participants: notification is going to be via web-form or anonymized e-mail -- from Mary Wong to All Participants: @Maxim, some of the GDPR implications are not necessarily requirements under the URS, though (as you noted) there are implications for how Rys and Rrs may deal with the providers and registrants. So there are likely to be a greater number of practical issues rather than policy ones. -- from Mary Wong to All Participants: For purposes of RPM review - not necessarily review of other consensus policies (e.g. around transfers). -- from Maxim Alzoba (FAITID) to All Participants: ability to contact will be maintained (it is possible to do without knowing the particular e-mail) 4. RFP on TMCH and Sunrise Survey -- In the final stretch of contracting. -- There will be work for the TMCH Data Sub Team to do to work with the contractor on the survey. >From the chat: -- From Mary Wong to All Participants: For the Sunrise & Claims survey, following the announcement of the vendor, the Data Sub Team will work with the vendor to develop the final survey questions (based on the very detailed guidance that the Sub Team developed and that was circulated to the WG and published as part of the RFP). The WG will have a chance to see the final questions before they are sent out to the target respondents, but it will not be a "drafting by group" exercise at that point. 5. Status of meetings for 16 and 23 May -- Staff reiterates that observers may not attend the WG meetings and should not receive meeting notices. They do have access to the wiki, transcripts, and recordings. -- Cancel meetings on 16 and 23 May while the Providers and Practitioners questionnaires are underway.

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RPM WG questions directed at me
by BECKHAM, Brian May 9, 2018

May 9, 2018

Hi everyone, I appreciate the chance to answer some of your questions. I also appreciate that time is near for our call, but I would like to share the following: George asked about WIPO’s “Select UDRP-related Court Cases” page, and why WIPO had not included certain cases on that page, and then why it was updated it as it was. After discussing this internally, and based inter alia on assessment of a number of reasoned discussions made on this very list as to the various range of factors involved in court‑sanctioned settled cases, it seemed clear that certain types of cases may or may not have probative value that speaks to the merits of the UDRP case. Illustrative of the fact that this assessment was applied in a neutral manner in terms of not including certain cases on this page, as you can see, the “lawsociety” case was also removed. As to why it was initially put up, I could not say; as you can see, nearly all of the content on that page predates my current role. I also understand from my Francophone colleagues that the Moobitalk case involves a complex trademark-jurisdictional question decided on distinct grounds from the UDRP case. Moreover, while we are facing record volumes of cases in recent years, with respect, on the few occasions where a third party brings a case to our attention, rather than simply post it on WIPO’s public webpage automatically, we prefer to take the necessary time to make a reasoned assessment before potentially doing so. Michael asked about my suggestions on a question in the Providers subteam survey. As has already been clarified on the email list by staff, the reason I reached out to staff is that I had put a suggestion on the list (on 26-Apr) with a suggestion to use more neutral language (i.e., that found in the URS Rules regarding impartiality requirements). Although there was subsequent discussion on the list about this, I was not aware that a resolution had been reached. However, on a call on 4-May, Kathy represented that the relevant subteam questions were finalized. I wrote to staff merely to see if they would be able to clarify whether this was the case; in their reply to me, they shared the subteam-agreed wording on that particular question. Since I understood that the subteam was seeking to close this work off by COB that Friday I sought to provide some very targeted feedback along the same lies of my original email of 26-Apr, and as I made clear to staff I would have been happy to raise the very same point in the full WG – I merely thought it would be more efficient to share my thoughts in advance with the subteam, via staff in this case. Anyone who know or has worked with me can attest that I try when possible to approach such matters with an efficient and solution-oriented mindset. Since I understood that these questions in any event would need to be cleared by the full WG, I merely thought this approach (occasioned if you recall by my asking for a procedural clarification) fit that mold. Martin asked about my role in WIPO, the GAC, and my Statement of Interest stating that I am representing my employer. At WIPO, I am responsible for day-to-day management and oversight of domain name operations (this includes a range of tasks such as HR, administration, finance, and IT), and also related IP and DNS policy activities (e.g., this working group). If you will allow me a brief word about WIPO (whose mission relates to “the development of a balanced and effective international intellectual property (IP) system that enables innovation and creativity for the benefit of all”), by definition, we, the staff here, are the “secretariat” to WIPO’s Member States. What this means is that we act in a neutral manner without taking substantive views. A recent example of this is my participation at our Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT)<http://www.wipo.int/meetings/en/details.jsp?meeting_id=46435> where issues such as trademarks and GIs on the Internet were discussed. While I might have personal views on international legal norms in these areas, our role is to provide a platform for Member State discussions – very much like the co-chair role envisaged for this particular ICANN working group. As for the GAC, WIPO, as a Member State-constituted organization, is an official observer. Frankly, we are not involved in the majority of GAC discussions, but seek where relevant to share our experience e.g., with administering dispute resolution systems, or where there are relevant Member State decisions relating to IP norms – a good example is that during discussions on the TMCH “proof of use” requirement, we shared with GAC colleagues a WIPO SCT survey that had been conducted on the registration office practices of Member States. As to any WG review of UDRP providers, at the recent Puerto Rico meeting, Mr. Kirikos raised some questions for the NAF, and while WIPO has written to ICANN about provider accreditation choices over the years, I did not intervene in that particular discussion; had I done so, I would have made it clear whether I was doing so in a non-chair capacity (assuming for argument’s sake that I would be in that role, to complete this example). It is of course true the WIPO is the leading UDRP provider, and I am honored to contribute to its work in this respect; WIPO (operating on a not-for-profit basis) believes that the UDRP is a positive international contribution for all DNS stakeholders, and WIPO’s interest is in its healthy functioning as a system that saves parties the time and expense of going to court, acts as a safe harbor by keeping registration authorities out of court/disputes, provides predictability in a domain name aftermarket, and protects consumers. Thanks for the opportunity to provide you all with these answers. Brian Brian Beckham | Head, Internet Dispute Resolution Section | WIPO Arbitration and Mediation Center 34 chemin des Colombettes, 1211 Geneva 20, Switzerland | T +4122 338 8247 | E brian.beckham(a)wipo.int<mailto:brian.beckham@wipo.int> | www.wipo.int<http://www.wipo.int/> World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. If you have received this e-mail by mistake, please immediately notify the sender and delete this e-mail and all its attachments. Please ensure all e-mail attachments are scanned for viruses prior to opening or using.

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REMINDER re: Nominations for RPM Working Group Co-Chair
by Julie Hedlund May 9, 2018

May 9, 2018

Dear Working Group members, Per the message below and the discussions during the RPM PDP WG meetings at ICANN62 (see attached notes) this a reminder that we are seeking nominations for the position of the third Co-Chair to assist in the administration of the WG’s large and complex agenda and encourage members to immediately begin consideration of volunteering or nominating someone else. As noted in the message and for your guidance, please see below the relevant sections of the GNSO Working Group Guidelines on how Working Group leaders are selected. Note that holding an election is not mandatory. It is up to the Working Group to determine whether and how it wishes to appoint an additional Chair. In addition, although (as noted below) the GNSO Council must confirm the appointment via its consent agenda, in the meantime, if the Working Group agrees on an additional chair, he/she can begin serving as an interim appointee. Best regards, Mary, Ariel, Berry 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, March 5, 2018 at 11:45 AM To: gnso-rpm-wg <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] RPM Working Group Co-Chair Dear Working Group members, On behalf of Heather Forrest, Chair of the GNSO Council, Kathy and Philip, Co-Chairs of the RPM Working Group, we are informing you that J. Scott has decided to resign as Co-Chair effective Friday, 02 March. We are all very grateful for J. Scott’s dedication and thoughtful leadership of this Working Group since its inception. At this time we are asking Working Group members to consider the importance for this group to continue to have a third Co-Chair to assist in the administration of its large and complex agenda and encourage members to immediately begin consideration of volunteering or nominating someone else. We also would like to suggest that the Working Group could reserve time during our face-to-face meetings on Saturday, 10 March at ICANN61, to discuss the Co-Chair selection process; based on our recent survey these will be the full WG meetings with the greatest member participation. For your guidance, please see below the relevant sections of the GNSO Working Group Guidelines on how Working Group leaders are selected. Note that holding an election is not mandatory. It is up to the Working Group to determine whether and how it wishes to appoint an additional Chair. In addition, although (as noted below) the GNSO Council must confirm the appointment via its consent agenda, in the meantime, if the Working Group agrees on an additional chair, he/she can begin serving as an interim appointee. We look forward to hearing from the Working Group on how best to proceed. Best regards, Mary, Ariel, Berry and Julie GNSO Working Group Guidelines: https://gnso.icann.org/en/council/annex-1-gnso-wg-guidelines-30jan18-en.pdf… 2.1.4.2 Election of the WG Leaders Unless a Chair has already been named by the Chartering Organization, normally a Chair will be selected at the first meeting of the WG. Until that time, the Chartering Organization’s liaison may fulfill the role of interim Chair. A Working Group may elect to have Co-Chairs and Vice-Chairs. Under extraordinary circumstances, ICANN staff may be requested to perform administrative co- ordination of the WG until such time a Chair can be appointed. Once selected, a Working Group Chair will need to be confirmed by the Chartering Organization (CO). The newly elected Chair will act on a provisional basis until the Chartering Organization has confirmed the appointment. If there are any objections to the selected Chair, the CO will conduct a vote to establish whether there is sufficient support for the selected Chair according to the voting procedures of the CO. If not, the Working Group will be requested to reconsider their choice for Chair and return to the CO with a new proposal. In the unlikely event that the selected Chair is rejected by the CO, the CO must articulate its reason for the rejection and the WG must be able to ask for reconsideration of the decision. Section 2.2: A suggested procedure to conduct elections may be: • Nominations or self-nominations; • Statements of qualifications from candidates, which sets forth the qualifications, qualities and experience that they possess that will serve the particular WG; • Vote by simple majority; • Notification of and subsequent confirmation by the Chartering Organization of results of actions”.

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URS Phase Two Proposal: Charter Analysis
by Julie Hedlund May 8, 2018

May 8, 2018

Dear Working Group members, One of the action items from the Working Group call on 02 May was, “Staff will determine what if any flexibility the charter allows for how URS is addressed, without requiring a change to the charter.” Accordingly, the RPM Working Group support staff and Co-Chairs conducted an in-depth analysis of the RPM PDP Working Group Charter and determined that while Phase One “will focus on a review of all the RPMs that were developed for the New gTLD Program” (including the URS), we may have flexibility within Phase One to publish for public comment as an Initial Report a set of preliminary recommendations for the pre-launch RPMs (TMCH, Sunrise, Claims and TM-PDDRP)= so long as that Initial Report opines on the effectiveness of the URS and whether it is “fit for purpose.” Absent any charter change, we note that the Working Group may elect to defer some policy recommendations on the URS to Phase Two and further note that there is no need to decide at this point in time which URS policy issues will be deferred to Phase Two; this is a decision we can make towards the end of our Phase One discussions. The Co-Chairs note that the Charter is very specific as regards what work must occur in and the deliverables from Phase One (the 2012 New gTLD Program RPMs) and what is the focus of Phase Two (UDRP): “(a) A Two-Phased Approach: This PDP Working Group is being chartered to conduct a review of all RPMs in all gTLDs in two phases: Phase One will focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. By the completion of its work, the Working Group will be expected to have also considered 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. At a minimum, in each Phase of this PDP, the Working Group is expected to first assess the effectiveness of the relevant RPM(s), for which the Working Group should seek the input of experienced online dispute resolution providers and other subject matter experts, as may be appropriate.” (Emphasis added) The charter also includes specific deliverables, timeframes, and instructions for the end of Phase One: “Deliverables & Timeframes: In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two. Phase Two of the PDP Working Group shall focus primarily on the review of the UDRP. However, during this Phase the Working Group is also expected to review its first Initial Report, taking into account public comments received, and/or feedback submitted from the New gTLD Subsequent Rounds PDP or other ongoing efforts. Before concluding its work the Working Group shall take into account any relevant developments from the New gTLD Subsequent Rounds PDP WG and/or other relevant ICANN review or policy development work. The Working Group’s second Initial Report shall be completed and published for public comment, as per the PDP Manual. The Working Group shall then review all comments, complete its Final Report and submit it, as per the PDP Manual, to the GNSO Council for its consideration and further action.” (Emphasis added) As such, the Co-Chairs and staff believe that moving the URS entirely to Phase Two will require a Charter amendment. That said, as noted above there may be flexibility within Phase One to consider deferral of select URS policy issues so long as the Initial Report assesses its overall effectiveness – as long as the principal focus and work on the URS is conducted in Phase One. For example, an actual overall Phase One Initial Report can be published that speaks to the more general, overarching question of whether the 2012 New gTLD RPMs fulfill their collective purpose and assessing their effectiveness; and whether changes need to made to these New gTLD RPMs before they are incorporated into future rounds of New gTLDs. Additionally, and for URS in particular, Phase One recommendations can reveal additional policy issues or findings that should be considered in Phase Two. All of the above would, however, still “count” as Phase One of the PDP. Again, so long as the URS is a principal focus of Phase One, and so long as the Initial Report opines on its effectiveness and “fitness for purpose,” we appear to have flexibility in regard to deferring select URS policy recommendations to Phase Two. For example, the Initial Report could contain recommendations for addressing administrative and operational issues for the URS identified in Phase One while deferring recommendations on policy issues on which the WG cannot reach consensus, or ones that the WG believes are intertwined with dispute resolution policy matters and should be addressed with its Phase Two review of the UDRP. There is no need to categorize those issues at this time, as they can await our receipt of answers to questions directed to Providers and Practitioners and subsequent analysis thereof. Taking this route would negate any need to ask Council to consider any Charter modification, as well as avoid an internal debate regarding what levels of support and opposition justify such a rare request. In summary, the Co-Chairs and staff believe that there is flexibility within Phase One itself that may allow the Working Group to go forward with certain RPM recommendations without having to bundle all the 2012 New gTLD RPMs in one report. Thus, the Co-Chairs and staff suggest that instead of focusing on what goes in Phase One vs Phase Two and what level of consensus is required for a Charter change, the Working Group discussion should center on completing and publishing its reviews of the TMCH, Sunrise, Claims, TM-PDDRP and URS, while recognizing that we have flexibility on the URS review and can defer for now any decisions on what URS policy recommendations will be contained in the Phase One Initial Report and the Phase Two Report to follow. Thank you and best regards, Philip and Kathy

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REMINDER: Proposed agenda for RPM Working Group call on 09 May 2018 at 1200 UTC
by Julie Hedlund May 8, 2018

May 8, 2018

Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 09 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Staff notes that the GDD Summit and RightsCon conflict with the WG meeting on the 16th, and the INTA meeting conflicts with the WG meeting the 23rd, so it will be very helpful if WG members could indicate their availability for those dates. Draft Agenda: Roll call and updates to Statements of Interest (1 minute) Co-Chair Nomination: Q&A with Brian Beckham Discussion Decision on Co-Chair Nomination (20-29 minutes total) Continued discussion of URS Phase II proposal (tentative-if necessary/30 minutes) Presentation of Research from Rebecca Tushnet (30 minutes) Status of meetings for 16 and 23 May (1 minute) Best regards, Mary, Julie, Ariel and Berry

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Procedures for RPM Working Group Co-Chair Selection
by Julie Hedlund May 8, 2018

May 8, 2018

Dear Working Group members, On behalf of the Co-Chairs of this PDP Working Group, it might be helpful to reiterate the procedures in the Working Group Guidelines (see also below) for selecting a Co-Chair. Given those procedures and the fact that there is no requirement to hold an election if one is not deemed necessary, here is the suggestion to the Working Group for proceeding with the Co-Chair selection process: 1. Until end of day 08 May Working Group members should send either their objections to Brian Beckham’s becoming a co-chair and/or specific questions for Brian to the list; 2. If no objections or questions are received, or Brian chooses to answer any specific questions that come in before or during the 09 May meeting, the Working Group will have the opportunity to confirm Brian’s appointment during the 09 May meeting. In fairness to Brian, we strongly urge that any questions for him be submitted in writing by COB on May 8. 3. If objections are received or questions submitted that warrant a discussion/response on a call, these be addressed at the 9 May meeting at which next steps can also be decided (including an election if need be). Best regards, Mary, Ariel, Berry, and Julie GNSO Working Group Guidelines: https://gnso.icann.org/en/council/annex-1-gnso-wg-guidelines-30jan18-en.pdf… “2.1.4.2 Election of the WG Leaders Unless a Chair has already been named by the Chartering Organization, normally a Chair will be selected at the first meeting of the WG. Until that time, the Chartering Organization’s liaison may fulfill the role of interim Chair. A Working Group may elect to have Co-Chairs and Vice-Chairs. Under extraordinary circumstances, ICANN staff may be requested to perform administrative co- ordination of the WG until such time a Chair can be appointed. Once selected, a Working Group Chair will need to be confirmed by the Chartering Organization (CO). The newly elected Chair will act on a provisional basis until the Chartering Organization has confirmed the appointment. If there are any objections to the selected Chair, the CO will conduct a vote to establish whether there is sufficient support for the selected Chair according to the voting procedures of the CO. If not, the Working Group will be requested to reconsider their choice for Chair and return to the CO with a new proposal. In the unlikely event that the selected Chair is rejected by the CO, the CO must articulate its reason for the rejection and the WG must be able to ask for reconsideration of the decision. (Emphasis added) Section 2.2: A suggested procedure to conduct elections may be: Nominations or self-nominations; Statements of qualifications from candidates, which sets forth the qualifications, qualities and experience that they possess that will serve the particular WG; Vote by simple majority; Notification of and subsequent confirmation by the Chartering Organization of results of actions”

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Re: [gnso-rpm-wg] [Gnso-rpm-practitioner] Final Draft Questions for Practitioners -- Final due
by Jason Schaeffer May 7, 2018

May 7, 2018

Hi Kathy and Phil, As requested, I am pleased to report that we were able to successfully take the discussion off line and return to the WG with an updated Final Draft of Questions for Practitioners. Attached for final review and approval is a revised redline that incorporates all questions that were previously accepted and the new edits (on Page 8) that amend the questions from Paul Keating regarding handling of potential conflicts of interests. The edits are the work of those on copy here, and reflect over 1.5 hours of collaboration on our Friday conference call on the topic. I understand from Staff and the co-chairs that these surveys need to be finalized. Thus the rapid turnaround for the WG. Thanks, Jason From: Kathy Kleiman [mailto:kathy@kathykleiman.com] Sent: Thursday, May 03, 2018 10:48 AM To: Corwin, Philip; Jason Schaeffer Cc: Scott Austin; Georges Nahitchevansky; Petter Rindforth; paul(a)law.es; Greg Shatan; gnso-rpm-practitioner(a)icann.org Subject: Re: Conference to Address Issue [Gnso-rpm-practitioner] REMINDER FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April Hi Jason and All, I've cc'd the full Practitioners Subteam. Per Jason's request, I think we have a forum here for discussion. So let's take this off the main list and resolve it here in the subteam - with Paul Keating now added. I've talked with Phil, and because the issue may take a day or two to discuss, our deadline is now cob Sunday. Best, Kathy On 5/3/2018 10:05 AM, Corwin, Philip wrote: Please do take it off list because it has introduced a divisiveness that was absent until now. This is the problem when questions are submitted after sub team and WG review deadlines have passed. Try to reach a solution, but the questions must be final by cob Friday. Sent from my iPhone On May 3, 2018, at 9:23 AM, Jason Schaeffer <jason(a)esqwire.com<mailto:jason@esqwire.com>> wrote: Hi All: I'm writing to our sub-group volunteers to invite Paul into this group to take the discussion "off line" from the WG and see if we can work together to find a suitable solution to allow us to move forward with our survey. We worked for many weeks to bring this forward to the Sub Team and WG. I'd like to see if we can use the same collaborative effort to see if we can find a manner to improve upon the questions added by Paul and see if there is a path forward that does not raise such extreme objections. Can we discuss over the next two days and see if we can move this forward and present to the WG? Thanks, Jason On May 2, 2018, at 12:42 AM, Scott Austin <SAustin(a)vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> wrote: Greg: Thank you Greg, I agree as a member of the sub team who worked long and hard on the survey questions to encourage practitioners to respond, this 11th hour add on will have exactly the opposite effect, by insinuation it reads like a malpractice interrogatory, addressed to examiners not practitioners, at a minimum chilling candid response and possibly skewing the results entirely. Should be deleted from a survey of practitioners. Best regards, Scott Please click below to use my booking calendar to schedule: a 15-minute call<http://calendly.com/saustin-2/15min> a 30-minute call<http://calendly.com/saustin-2/30min> a 60-minute call<http://calendly.com/saustin-2/60min> <image001.png><image002.jpg> <image003.jpg><http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin(a)VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com> From: Gnso-rpm-practitioner <gnso-rpm-practitioner-bounces(a)icann.org<mailto:gnso-rpm-practitioner-bounces@icann.org>> On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 12:24 AM To: Corwin, Philip <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>> Cc: gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org> Subject: Re: [Gnso-rpm-practitioner] REMINDER FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April I have an issue, which I guess I will have to bring up to the RPM group as a whole. I had not really focused on the questions tacked on to the very end. I don't believe we ever discussed these in the sub-team or the sub-sub-team. I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions. I am also troubled by the questions themselves. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not. On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party. Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place. For that reason, I will not discuss the problems in the follow-up questions. The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner? Long story short, these questions should be deleted. Greg On Mon, Apr 30, 2018 at 4:06 PM, Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Jason, Thank you for guiding us through this process. I think this turned out to be a very successful and collaborative sub-team - due in no small part to your approach in working with this group. We had good contributions from across the subteam (and the sub-sub-team) as well. I believe we ended up with fair, well-formed questions that will maximize the amount of useful information that results from this process - both in terms of the raw data and in terms of analysis and results that will arise from working with the data. Thanks again! Greg On Mon, Apr 30, 2018 at 3:09 PM Corwin, Philip via Gnso-rpm-practitioner <gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org>> wrote: Well done, and thanks and congratulations to the sub-team members and to all other who helped shape the final questions. 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 From: Gnso-rpm-practitioner [mailto:gnso-rpm-practitioner-bounces@icann.org<mailto:gnso-rpm-practitioner-bounces@icann.org>] On Behalf Of Jason Schaeffer Sent: Monday, April 30, 2018 2:44 PM To: Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>>; gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org> Subject: [EXTERNAL] Re: [Gnso-rpm-practitioner] REMINDER FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April Hi Julie, Thank you and staff for your ongoing assistance. Having heard no objection and considering the thoughtful debate and input from members to help finalize these questions, I would be comfortable using your latest edit as the final document from our sub-team. Thanks, Jason From: Gnso-rpm-practitioner [mailto:gnso-rpm-practitioner-bounces@icann.org] On Behalf Of Julie Hedlund Sent: Monday, April 30, 2018 9:05 AM To: gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org> Subject: [Gnso-rpm-practitioner] REMINDER FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April Importance: High Dear Jason and Practitioner Sub Team members, Per the message below, please note that any comments from your review of the attached questions are due COB today, 30 April. Best regards, Mary, Ariel, Berry, and Julie From: Gnso-rpm-practitioner <gnso-rpm-practitioner-bounces(a)icann.org<mailto:gnso-rpm-practitioner-bounces@icann.org>> on behalf of Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Date: Wednesday, April 25, 2018 at 1:56 PM To: "gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org>" <gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org>> Subject: [Gnso-rpm-practitioner] FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April Dear Jason and Practitioner Sub Team members, Per the notes below from today's RPM WG meeting, the Practitioners Sub Team is requested to review the attached final draft of the questions for practitioners. This redlined version includes the changes received since last week's RPM WG call from Scott Austin, Brian Beckham, George Kirikos, Greg Shatan, and David McAuley as of 24 April, which was the deadline for comments. Also included for your review are new questions received from Paul Keating on 25 April. These new questions are included at the end of the "Other" section on page 8. In your review of the revised questions, please indicate whether there are revisions with which you do not agree, and whether you have comments or edits to suggest. As noted above, the Sub Team is tasked with agreeing to a final version of the questions by COB on Monday, 30 April, that staff will then turn into a survey to be provided to the list of practitioners previously agreed to by the Sub Team. Please let staff know if you have any questions or need assistance. Best, Mary, Ariel, Berry, and Julie From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Date: Wednesday, April 25, 2018 at 1:08 PM To: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] Actions & Notes: RPM PDP WG 25 April 2018 Dear All, Please see below the action items and brief notes captured by staff from the Working Group call held on 25 April 2018 (1200 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 transcript or recording. The recording, transcript, Adobe Connect chat, and attendance records are posted on the wiki. The referenced document is attached. Best Regards, Julie Julie Hedlund, Policy Director Action Items: 1. Questions for URS Practitioners: * The Sub Team will finalize the questions by Monday, 30 April. * Staff will create a survey and send to the Practitioners. 1. Questions for Providers: * Staff will close the document for review by Friday, 27 April and send it to the Sub Team for a final review. * The Sub Team will complete a review of the questions by COB Monday, 30 April. * Staff will send the questions to the Providers. Notes: 1. Questions for URS Practitioners: -- Question 3: Edit from George re: Question three - Reword as two separate questions - filing and response fees. -- The Sub Team will finalize the questions by Monday, 30 April. 2. Questions for URS Providers: -- Responses from most Providers that they can respond in 30 days for most questions, and 45-60 days for questions that require a review of decisions. -- Close the document for review by this Friday, 27 April and then send to the Providers. Review of the Questions: Communications: Question 2 - changes accepted. Question 5 - new question b captures the concern from Brian Beckham, and c addresses George's concern. Question 6 - changes accepted. Question 7 - changes accepted. Complaints: Question 4 - Correct the grammar; providers may need to consult with examiners. Question stays as amended. It can stay in and that we understand the limitations around it. Notice of Complaint and Locking of Domain Question 5: This has been moved to another section, question 2 in Communications: Rule 4(c): "The electronic copy of the Notice of Complaint may be provided via email or an emailed link to an online platform requiring users to create an account." It can be deleted here. George and Brian have accepted the edits. The Response: Question 1: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 4: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 11: Change to: "Have you received feedback that the Response period is inadequate?" Question 14: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 15: DELETE. Concerned about the definition of "domain investors". It will be quite difficult if not impossible to get this information from providers. Doesn't seem much utility in the answers. Also may be able to get some of this information from determination data being gathered by Rebecca. Examiner: Question 12b: No case of an abusive complaint - no entry in the abuse case database - so is this question still necessary? Leave it in because we want to know if they have a policy. Revise to include the URDP concept of RDNH. Rewrite to ask whether the provider has a policy of allowing someone to be an examiner if they also represent complainants. Question 12c: is suggesting that part c of the question isn't needed since we already have responses from the providers. But there is a difference between how many examiners are on the roster and how many are actually deciding decisions. Edit to make this a more targeted question regarding the size of the examiner pool, whether random assignment is used, etc. by COB 25 April. Question 13: Providers would not know the status of their examiners. Examiners may not be willing or able to say either. Also seems to be suggesting that you can't represent both respondents and complainants. Not sure what is the point of the question. ACTION: Rephrase to focus on panel selection policy to encourage diversity in trademark practice. Suggestion: "What steps, if any, do you take to ensure that your Examiners have a diversity of relevant experience, e.g. have experience representing respondents as well as complainants?" Language: Question 4: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. In Person Hearings: DELETE. Question doesn't make sense. Default: Question 1: Seems to ask providers how they do something for a procedure over which they have no control. ACTION: Take it back to the Sub Team to consider deleting. Question 2: DELETE. We already have this information from the case review for both within 6 months and after 6 months. Question 3: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in Examiner Determination: Question 3: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in, but include Brian's reformulation: "Noting URS Rules 13(a) that Examiners may 'make a Determination ...in accordance with ...any rules and principles of law that it deems applicable.' Are you aware whether any case that the Examiner has invoked this rule?" Question 8: Possibly duplicative. ACTION: Take it back to the Sub Team to consider deleting, or rephrase it. Question 10: DELETE. Provider can't know what the examiner assigns to others in their office. But could rephrase if they are aware or provide any suggested language or clerical help to examiners. George will send revised language. Remedies: Question 4: This is seeking an opinion; keep it in. Question 5: DELETE. Keep it for the WG. Question 6: Leave it in, but add: "If yes, what action did you take on receiving the notice or to resolve the query?" Effect of Court Proceeding. Question 1: Ask David McAuley to send revised language. Done: "To your knowledge, have there been instances of legal proceedings relating to URS proceedings and, if so, what effect did such instance(s) have?" Others: Question 3: Leave it in, and ask, "If so can you provide the type of information or data requested.." Also, combine with Question 4. Question 4: See above. Combine with question 3. Question 6: Policy question. Unless others have suggestions for rewriting it, the question will be deleted. Question 7: DELETE. Determined to be out of scope. Or, we could ask if Providers support sanctions against abusers of the process whether Complainant or Respondent. Also, could ask all Providers if they clearly disclose potential conflicts? Or could ask FORUM specifically. Hold off decision on this call and discuss further, although leave it out of the list of questions for now. _______________________________________________ Gnso-rpm-practitioner mailing list Gnso-rpm-practitioner(a)icann.org<mailto:Gnso-rpm-practitioner@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-practitioner This message contains information which may be confidential and legally privileged. 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