Dear All,

Please see below the action items captured by staff from the RPM PDP Working Group call held on 29 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/x/xgG-C

Best Regards,

Ariel

Ariel Xinyue Liang

GNSO Policy Support Specialist

Internet Corporation for Assigned Names and Numbers (ICANN)

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Action Item:

• Staff to propose the revised implementation guidance language for Sunrise Rec 2 based on today’s WG discussion, noting that the WG don’t have agreement to include the small group proposal re challenge mechanism but that the WG could (potentially) capture that discussion as part of context.

WG Suggested Edits:

• The WG accepted adding the word “intentionally” in the recommendation language.
• Suggested options for the introduction sentence proceeding the bullet points:
  • The following is a non-exhaustive list of Registry Operator conduct that was identified in public comments as potentially having the effect of intentionally circumventing…;
  • The following are examples of Registry Operator conduct that some commentators raised in their public comments as potentially having the effect of intentionally circumventing ... etc.;
  • Some primary forms of perceived Sunrise misuse expressed by trademark owners of Registry Operators' conduct include... Some communities in the WG and commenters shared...

  • Sunrise abuse of the type intended to be prohibited under this Recommendation include:

  • Questions were raised with regard to what type of conducts that fall into the category of Sunrise abuse. Some WG members believe….
• Revise the first bullet to “Withholding, reserving, or self-allocating trademark-corresponding domains…” for grammatical reasons. 

• Strike the term “or discouraging” as it introduce uncertainty.
• Include "the WG did not agree on these examples"; "the WG also received views that pricing practices were not within its jurisdiction"; "other views emphasized the risk of targeting pricing decisions on legitimate business models, including the practice of identifying reserved names"

• The working group further notes that the IMPLEMENTATION of this recommendation is not intended to...

• Include a mention of the third party challenge mechanism proposal in the contextual language, as part of the discussion record, noting it did not receive widespread support in the WG but significant opposition. The question about how one could raise a complaint regarding a perceived violation of this recommendation still remains open.

Discussion Notes:

• “Perceived” Sunrise abuse is not helpful. If we can’t agree then we should be clear about it.
• Maxim noted the concerns regarding the lack of safeguard for GeoTLDs in the implementation guidance language.
• If we don't identify legitimate business practices, the preamble is meaningless

• intents are not important at implementation phase, there are no safeguards

• Also isn't it a bit chicken and an egg. If the new implementation of the recommendation' created the ambiguity that is complained of – won’t that become  'ICANN policy' itself therefore the preamble is rendered useless?
Part of the concern is around language that is a bit open and can be misused. The language has huge potential of being used for extortion of money from Registries. If we just give free floating "registries can do bad things" language then many different things could happen inconsistent with what we agreed on
• That's my concern, especially without a counterbalancing list of "we don't mean …."

• I note that the objections to the .madrid ALP included that it would interfere with TMCH registrants (and people here might agree)

• It’s not a red herring because this proposal is to cover new ground which is plausibly in the area Maxim has raised
• We do not have consensus, so it opinion of some members and objected by some other members

• . sucks - what percent of all TLDs is that? it is less then 0.1%

• Mention the examples are shared in the public comments by trademark interests. It is not just groups like IPC and BC that provided the examples. If we want to clarify the language to make clear that we are talking about abuse perpetrated by ROs we can do that. Make it clear the examples are not WG agreed
• if claims are still active at the later than sunrise registration - the harm is minimal (TM owner is notified and able to act)

• Reserving a name to a police dept is obviously legitimate.
Reservation is a dynamical process, not static. For example, ICANN changed red Cross required list of reserved names almost 2 months ago.
• But Sunrise period is concrete period for each TLD so intentional reservation practices circumventing Sunrise is the only issue.
• Need to clarify what discriminatory pricing means – it is extremely high premium pricing, followed by extremely low land rush/GA pricing. Premium pricing and pricing alone are not basis for complaints. Need to be careful about the picket fence.
• Direct price regulation will lead to issues in anti-monopoly agencies around the globe.
• Is pricing really irrelevant when the price is based primarily on the value of a trademark corresponding to a given generic word?

• Go back to public comment to extract similar set of opposing opinions.
• I take the point that the ALP needs to work better in order to provide a legitimate means of getting certain domains to certain parties without running afoul of Sunrise requirements. I don't think we can resolve ALP issues in context language--I just think a richer picture would help.With ALP it would have been much easier if we could have said something along the lines “The working group recommends there should be a predictable process to timely evaluate and approve or reject an ALP request”.
• common words; dictionary words seems fair wording to add to the new Context language. Per the empirical research of Barton Beebe & Jeanne Fromer: in the US and Europe, 75-90% of the 1000 most used dictionary words are registered trademarks (in English; preliminary results suggest similar but somewhat lower results in other EU languages).The non-registered most-used dictionary terms include: “despite,” “died,” “difficult,” “disease,” “killed,” “lack,” “loss,” “older,” “problem,” "violence” “least,” “perhaps,” “probably,” “trying,” “drug,” “religious,” “wants,” “husband,” “wife,” “married,” “male,” “woman,” “daughter,” “herself,” and “himself”.
• Again, were those proposed additions in the public comment? If not, we are just relitigating here. If they were, who said them?
So what is in here already is from public comment.  What others are suggesting is just re-litigation of their old positions.
• Our goal here is to provide general guidance to an IRT which, if the Rec receives consensus, will be tasked with drafting a specific RA provision that more precisely delineates what registry conduct may trigger an enforcement action

• It is these kinds of judgment calls that should militate in favor of a third-party dispute resolution procedure applicable to this provision.Akin to picdrp

• With our recommendation to allow joint filings under pddrp, why isn't it a sufficient 3rd party enforcement mechanism to take action against discriminatory sunrise circumvention that results in second level infringement? why is something more, new, and undefined required?

• There is a concern that if we provide general guidance it continue to fail to translate into productive outcomes from IRT & GDS.
• The question about how one could raise a complaint regarding a perceived violation of this recommendation still remains open. There is no widespread agreement and significant opposition to the third party challenge mechanism proposed by the small team.
• But context doesn’t need to capture consensus views? At the very least surely we can say that someone the WG supported a new third-party challenge mechanism as a means of enhancing compliance around this proposed new RA provision.
• I have no objection in trying to get to agree the implementation guidance, but do not think it is appropriate to compile everyone's various opinions and claim it is implementation guidance.

• I think we should give one more shot for a refined version of implementation guidance based on staff attempt at further revision based on today’s discussion. I think we can reach something generally agreeable with a few key refinements. 

• Some members don’t believe the small team proposal on third party challenge mechanisms is in any way related to the recommendation. Just include it as some members suggested and raised it as an idea to supplement Rec 2.
• If this proposal is mentioned, all the other proposals eliminated by the WG should also be mentioned.
• It’s not “unrelated” to ICANN Compliance…. it would be coordinated with Compliance in a similar way PICDRP and PDDRP are.It’s clearly related because it is a challenge mechanism for the prohibited activity under this recommendation.
• I do not think it can appear as just some thought external challenge and some did not - it is a policy rec that deserves a consensus call and we cannot simply send it along with equal treatment to other ideas, there is enough opposition to it that that would not be right. 

• I don't believe we need a new 3rd party challenge mechanism for aggrieved trademark owners to communicate to ICANN Compliance a belief that they should enforce the new RA provision

• Unlimited number of third parties challenging domain names in an unpredictable manner will cause consumer confusion and loss of confidence. 

• On what basis do you assert that?  PICDRP and PDDRP didn’t have that effect

• We can simply put a header on the Deliberations (Opinions section) that none of the below ideas got consensus. That seems fine and universal.

• Agree that the IRT needs some guidance and that examples are useful. So something needs to go into the contextual language - maybe allow suggestions back to the list by Friday, close out on final language on list by next Tuesday. If no consensus on final language, then the context will only link to the public comments?