Dear WG members,

Thanks very much, Griffin, for the suggested clarifying edits to the contextual language of this Sunrise recommendation.

Since no additional input were received by today’s deadline at 16:00 UTC and no objection noted by any other WG member to Griffin’s suggested edits, staff will adopt them in the contextual language of this recommendation.

Best Regards,

Mary, Julie, Ariel

From: Griffin Barnett <Griffin@Winterfeldt.law>
Date: Tuesday, October 6, 2020 at 3:02 PM
To: Ariel Liang <ariel.liang@icann.org>, "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org>
Subject: [Ext] RE: [GNSO-RPM-WG] Update: Sunrise Rec 2 - Input by Thursday 8 Oct 16:00 UTC

Hi all,

Staff - thanks for this updated text.  I would suggest the following further revisions to the second proposed context paragraph, which I intend as clarifying edits rather than to materially alter the substance:

To assist the IRT which that will be formed to implement recommendations adopted by the Board from this PDP, the Working Group tried to reach agreement over on some possible types of specific Registry conduct that could have the effect of intentionally circumventing trademark owners’ use of the Sunrise Period within the meaning of the Registry Agreement provision envisioned in this Recommendation, so as to trigger enforcement action by the contractual compliance department of ICANN org should the Registry Agreement contain a prohibition on such conduct.  As part of its discussion, the Working Group noted that several public comments to the Initial Report had raised the following examples as non-exhaustive illustrations of such conduct (some of which had also been raised by Working Group members):

• Withholding or self-allocating domains names that correspond to trademarks recorded in the TMCH with the intent of circumventing the use of the Sunrise Period by trademark owners;
• Discriminatory pricing practices clearly designed to leverage effectively prevent the need for reasonable ability of trademark owners to obtain defensive Sunrise registrations by trademark owners for their marks recorded in the TMCH. In this context, “discriminatory pricing practices” could include extremely high pricing during the Sunrise Period of the domains names that correspond to trademarks recorded in the TMCH followed by significantly lower prices for the same domain names during Landrush or General Availability, such as to evidence an intent to targeting trademark owners either specifically, or as a general class of registrants, for the purpose of inhibiting access to Sunrise registrations.

The other edits in the Context section read well to me.

Ultimately, I would have preferred that the above text be included as Implementation Guidance to the Recommendation itself rather as mere context, but in the spirit of compromise and noting the concerns others have raised on this matter, can accept its relocation to Context.

Hope the suggested revisions are nonetheless helpful.

Best regards,

Griffin

---

[winterfeldt.law]

Griffin M. Barnett Associate Winterfeldt IP Group 1601 K Street NW, Ste 1050 Washington, DC  20006 griffin@winterfeldt.law +1 202 759 5836

From: GNSO-RPM-WG [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Ariel Liang
Sent: Tuesday, October 6, 2020 1:27 PM
To: gnso-rpm-wg@icann.org
Subject: [GNSO-RPM-WG] Update: Sunrise Rec 2 - Input by Thursday 8 Oct 16:00 UTC

Dear WG members,

Please find the updated version of Sunrise Recommendation #2 in this google doc here: https://docs.google.com/document/d/1SmXWvS9M4TAtQ3gC3o4j9-jHaw3uIlWR_2D3lV2vvTU/edit?usp=sharing [docs.google.com]. This update seeks to incorporate the input provided by WG members on the mailing list and during today’s meeting.

Please note that amendments already agreed by the WG today have been accepted. The current redline edits specifically reflect the following:

• Move the great majority of the Implementation Guidance text into the “context” section (shown in redline).
• Universal change to replace the term “trademark-corresponding domains” with “domains that correspond to trademarks recorded in the TMCH”.
• Clarification of the WG discussion about the question regarding whether any *additional* enforcement mechanism to supplement enforcement actions taken by ICANN Compliance (see redline edits in the final paragraph under “Context”).
• Other editorial changes suggested by David McAuley on list last Friday.  

Please provide your input/suggestion on the mailing list by 16:00 UTC on Thursday, 8 October. The updated language, incorporating any further input from the WG, is expected to be finalized on the coming Thursday.

Thank you,

Mary, Julie, Ariel