I agree with J. Scott. We must examine private RPMs. Some of the justification used for rejecting certain policies was related to implementation feasibility.
These RPMs prove that those arguments need to be revisited.
Thanks,
KiranKiran Malancharuvil
Policy Counselor
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org]
On Behalf Of J. Scott Evans
Sent: Wednesday, December 07, 2016 12:24 AM
To: Greg Shatan <gregshatanipc@gmail.com>
Cc: gnso-rpm-wg@icann.org
Subject: Re: [gnso-rpm-wg] FOR REVIEW/DISCUSSION - NEW co-chairs' statement on additional RPMs, and UPDATED table of TMCH Charter questions
Well Greg, I cannot say we always agree.
😞.
First, I am disappointed in your tone and implied accusation that the Co/Chairs are somehow abusing our position. I do not think that is the case. Our broad Charter is to review the RPMs to see if they are functioning as designed and having
the desired effect. Private RPMs play a part in this analysis. I stand by our letter.
Sent from my iPhoneI found the Co-Chairs' statement somewhat troublesome. First, I felt that it advocated for particular outcomes, which
both strains the bounds of chair neutrality and takes a top-down approach inconsistent with bottom-up development of WG positions (which is given a brief mention at the very end of the letter, but only after the advocacy has played out). It might have been
preferable to present the questions without the answers and allowed the WG to develop its position, rather than laying out a position that essentially becomes a default position.
That said, I have some sympathy for the idea the group should take notice of the private RPMs in trying to review, analyze and potentially modify the ICANN-created RPMs -- even
if I don't think that position should have been spoon-fed to the WG.
I have significantly more trouble with two paragraphs in the letter, which go beyond taking notice of the private RPMs, to asserting WG jurisdiction over the private RPMs.
I don't buy the argument that these are within the scope of this group; re-reading the Charter just confirmed my view. This is an aggressive attempt at "bootstrapping" from the remit of this group to reach into areas well out of scope.
The first of these paragraphs is:
The WG inquiry may also consider whether, and to what extent, additional protective services should be consistent with either policy decisions reflected in the shaping of the ICANN-required RPMs (noting that it may
have always been contemplated that such RPMs could constitute a “floor” and not an overall limitation on additional market-provided protections) or with the recognized scope of trademark law. For example, should a rights holder be able to block the registration
of unlimited variations of its registered mark, and should one trademark owner be able to block the registration of a mark that another has equivalent rights to for separate classes of goods and services?
To the contrary, the WG has no authority to opine on or to create policy for private RPMs -- unless the Charter is significantly amended (which I can't see supporting). The second troublesome paragraph is:
The Co-Chairs also wish to better understand the process, if any, by which registry operators gain approval for the offering of such additional RPMs. Section 2.1 of the standard new gTLD registry agreement permits
a registry operator to offer Registry Service that is an Approved Service, but requires it to request approval under the Registry Services Evaluation Policy (RSEP) if it wishes to offer any service that is not an Approved Service or is a material modification
of an Approved Services. It is important for the WG to understand whether registry-offered RPMs, especially those based upon TMCH mark registrations, have been subject to any such approval review and, if so, what criteria were utilized in their evaluation.
I think this goes even a step further than the first paragraph in a couple of ways. First, the issue of how and whether private RPMs should be approved seems even further beyond
the scope of this WG. Second, it advocates for a particular view and interpretation of both the registry agreement and the nature of private RPMs. I'm also a bit skeptical that this is propose just for the WG to "understand" what happened. RSEP requests
are public, as far as I know, so it would be readily evident whether any private RPMs were the subject of an RSEP request. Of course, even that question assumes too much. If we find ourselves delving into questions involving registry agreements, the parameters
of Registry Services and Approved Services, the nature of private RPMs, and the triggers that require the RSEP process, then I think we've lost our way.
Since this is only a draft statement, I would encourage the Co-Chairs to revise the statement to exclude these two paragraphs. Frankly, I would prefer it if the second draft
was nothing more than a set of questions, but this first draft is something that can't be unseen....
Greg
On Mon, Dec 5, 2016 at 3:25 AM, Mary Wong <mary.wong@icann.org> wrote:
Dear all,
In advance of the Working Group call this week, and pending circulation of the finalized agenda, please find attached the following documents for your review and further discussions:
(1) A draft statement from our Working Group co-chairs regarding the provision of additional rights protection mechanisms by the TMCH and registry operators (i.e. in addition to the minimum mandatory RPMs prescribed by ICANN and which form the basis of our
current Policy Development Process); and
(2) A table of all the TMCH-related Charter questions, as refined and suggested by the Sub Team and including notes and questions from several Working Group members as of 4 December. This document essentially replicates the Proposed Edited Questions that were
circulated in the form of the more comprehensive table that was discussed by the Sub Team, but hopefully aids your deliberations as it sets out all the proposed questions in one spot.
Thanks and cheers
Mary
On 12/5/16, 07:52, "gnso-rpm-wg-bounces@icann.org on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org on behalf of
icann@leap.com> wrote:
I think the 2nd formulation of Question #15 is better, as it's more
open-ended, yet also asks for specifics on how concerns can be
addressed.
As an aside, the "Original Question" of #15 suggested "of course with
a central database" --- there's no technical reason why a central
database would be required. There could instead be multiple
independent databases, which registrars and/or registries could query
in parallel via a standardized API. There'd only need to be a central
*list* of which TMCH providers needed to be queried. From a coding
perspective, the registrar/registry could simply query the entire list
of providers, and collate the results.
Most registrars already have this technology/capability, as they often
query multiple registries (and secondary marketplaces) in parallel
when customers attempt a new domain name registration (e.g. customer
searches for EXAMPLE.COM, but they'll query not only the
Verisign-operated .com registry, but also .net/org/biz/info/us and
hundreds of other TLDs, marketplaces like Sedo/Afternic, and they'll
even generate and query variations of "EXAMPLE.TLD" for availability,
presenting the customer with a list of hundreds of alternatives).
Sincerely,
George Kirikos
416-588-0269
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DgICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=6_VMDtwqWjvKswt7FWoxbWm99DZdJYcWV1rO_kKPtwk&s=qYMcZKuBn701mhM04nQ0JEKGBbIdXlM2qzbr7ngUHqY&e=
On Sun, Dec 4, 2016 at 12:25 PM, David Tait <david.tait@icann.org> wrote:
> Dear All
>
>
>
> In advance of the meeting of the Rights Protection Mechanisms Working Group
> on Wednesday at 1800 UTC, I am pleased to enclose the updated review of the
> TMCH Charter questions which has been prepared by the Sub-Team tasked to
> conduct an initial review of these questions.
>
>
>
> Staff have been expressly asked to draw your attention to Question 15. Two
> possible formulations of this question have been prepared and the Sub-Team
> is seeking the view of the Working Group as to which of these should be
> adopted.
>
>
>
> Kind regards,
>
>
>
> David Tait
>
>
>
> David A. Tait
>
> Policy Specialist (Solicitor qualified in Scotland, non-practicing)
>
> Internet Corporation for Assigned Names and Numbers (ICANN)
>
>
>
> Mobile: + 44-7864-793776
>
> Email: david.tait@icann.org
>
> www.icann.org
>
>
> _______________________________________________
> gnso-rpm-wg mailing list
> gnso-rpm-wg@icann.org
>
https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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