Kathy

----- Original Message -----
From:
"McGrady Paul D." <PMcGrady@taftlaw.com>

To:
"Julie Hedlund" <julie.hedlund@icann.org>, "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org>
Cc:

Sent:
Wed, 12 Aug 2020 11:47:10 +0000
Subject:
Re: [GNSO-RPM-WG] Proposed Agenda for RPM PDP WG Meeting - Thursday, 13 August 17:00 UTC

Thanks Julie!

All, in advance of #3 below, I have been giving the public comment some thought Below is what I came up with. I look forward to discussing it on the list and on Thursday.

__________________

The following is offered in response to the IPC and BC’s comments that modifications to the TM-PDDRP (the “Policy”) could solve the problem of circumvention by some registries of Sunrise:.

Here is a proposed Recommendation XX:

Amend the TM-PDDRP as needed:

·       to include a second potential claim that “Provider operates the gTLD in a manner that circumvents the purpose of the rights protection mechanisms and/or takes unfair advantage of Complainant’s trademark(s).”

·       such that proving either Section 62.1(a) or (b) is grounds for a successful complaint.

·       to more clearly explain the standard of proof for successful Complainants. Here is proposed text for consideration: “Complainants are required to prove, by clear and convincing evidence, that, through the registry operator’s affirmative conduct, there is a substantial pattern or practice of specific bad faith intent by the registry operator to profit from the goodwill associated with complainant’s trademarks, as evidenced by the manner in which the registry operator offers sunrise registrations or reserves and sells trademarked terms.”

·       to ensure that ICANN actually implements any adverse decision and award against a Provider under the Policy.

Safeguards for Registries:

·       higher prices without “something more” are not de facto price gouging

·       it is understood that registries often charge slightly higher prices for Sunrise registrations based on their costs

·       price gouging does not include listing an otherwise generic name at a higher price unless it is specifically targeted based on the TLD term (e.g., apple.computer vs. apple.food)

·       the policy is only meant to address concerns about the behavior of a Registry Operator that shows a pattern of bad faith behavior, not a few isolated incidents

·       the system is loser-pays in order to reduce the risk of frivolous complaints;

·       Compliance must still determine the appropriate remedy

·       The changes to the policy are not meant to create any new rights, but merely proposes a new way to enforce the existing policies and procedures.

I look forward to everyone’s thoughts on list and on the call.

Best,

Paul

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From: GNSO-RPM-WG <gnso-rpm-wg-bounces@icann.org> On Behalf Of Julie Hedlund
Sent: Tuesday, August 11, 2020 3:38 PM
To: gnso-rpm-wg@icann.org
Subject: [GNSO-RPM-WG] Proposed Agenda for RPM PDP WG Meeting - Thursday, 13 August 17:00 UTC

Dear RPM WG members,

Please find the proposed agenda and materials below for the full WG meeting on Thursday, 13 August 2020 at 17:00 UTC for 90 minutes.

Draft Proposed Agenda:

Review Agenda and Updates to Statements of Interest
TM Claims Recs #2, #3 #4, #5 & Q#2, Rec #6: see Public Comment Review Tool [docs.google.com] and Public Comment Analysis summary [docs.google.com]
TM-PDDRP Rec #1: see Public Comment Review Tool [docs.google.com] and Public Comment Analysis summary [docs.google.com]
AOB

Proposed Co-Chair rotation for chairing the meeting: Kathy Kleiman

Best Regards,

Mary, Julie, Ariel