FOR REVIEW/DISCUSSION - NEW co-chairs' statement on additional RPMs, and UPDATED table of TMCH Charter questions
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... 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 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Dear all, (1) No issues with this draft of the Co-Chairs Statement on Private RPMs as it stands. [Suggestion to staff that this be marked with date / version to enable convenient tracking of amended copies (if any) similar to treatment of other documents] (2) In respect of the t able of all the TMCH-related Charter questions (dated 5 Dec 2016), in particular Category 2 Question 1, I would like to propose a supplementary question as follows: If answered in the positive, should such mechanism be incorporated into and administered under the TMCH Dispute Resolution Procedures? A prelude to this would be to have some understanding on the evolving Guidelines subscribed to by the Review Panel, plus some data on the number of disputes filed and how many which were determined by the Review Panel as incorrectly rejected by the TMCH. Kind regard s, Justine Chew ----- On 5 December 2016 at 16:25, 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 t able 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=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6 sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=6_ VMDtwqWjvKswt7FWoxbWm99DZdJYcWV1rO_kKPtwk&s=qYMcZKuBn701mhM04nQ0JEKGBbIdXl M2qzbr7ngUHqY&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 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I 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=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6 sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=6_ VMDtwqWjvKswt7FWoxbWm99DZdJYcWV1rO_kKPtwk&s=qYMcZKuBn701mhM04nQ0JEKGBbIdXl M2qzbr7ngUHqY&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 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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 iPhone On Dec 7, 2016, at 1:21 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: I 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<mailto: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<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of icann@leap.com<mailto: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<http://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<tel:416-588-0269> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DgICAg&c... On Sun, Dec 4, 2016 at 12:25 PM, David Tait <david.tait@icann.org<mailto: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<tel:%2B%2044-7864-793776> > > Email: david.tait@icann.org<mailto:david.tait@icann.org> > > www.icann.org<http://www.icann.org> > > > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ <ACL>
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, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> 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 iPhone On Dec 7, 2016, at 1:21 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: I 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<mailto: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<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of icann@leap.com<mailto: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<http://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<tel:416-588-0269> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DgICAg&c... On Sun, Dec 4, 2016 at 12:25 PM, David Tait <david.tait@icann.org<mailto: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<tel:%2B%2044-7864-793776> > > Email: david.tait@icann.org<mailto:david.tait@icann.org> > > www.icann.org<http://www.icann.org> > > > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ <ACL>
I'm not saying I disagree with all of the Co-Chairs' conclusions. I just wish they weren't so conclusive. I do, however, disagree with the two paragraphs I cited. Taking private RPMs into account in our work can be valuable in doing our Charter-mandated work, and I support the Co-Chairs' conclusion there.. Asserting jurisdiction over private RPMs, however, goes beyond our Charter and I would not support that. I understand there's a balance between facilitating a discussion and advocating a conclusion. A good portion of the letter achieves that balance, and perhaps I was too harsh in making blanket statements; I value the Co-Chairs' hard work and bringing the issues to our attention. Again however, I feel that the two cited paragraphs go too far (perhaps because the conclusion is a big stretch) in setting out only one analysis and conclusion about the scope of our remit. Greg On Wed, Dec 7, 2016 at 3:28 AM Kiran Malancharuvil < Kiran.Malancharuvil@markmonitor.com> wrote: 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, Kiran *Kiran Malancharuvil* Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com *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 iPhone On Dec 7, 2016, at 1:21 AM, Greg Shatan <gregshatanipc@gmail.com> wrote: I 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... 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 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ------------------------------ <ACL>
I agree with Greg and think the two paragraphs he quoted are troublesome. Sure, taking a look at existing private RPMs as guidance as to what may work/what is feasible makes sense. Somehow claiming that the working group has “jurisdiction” over private RPMs or opining that any private RPM needed to go through an RSEP is another matter. The private RPMs are created by Registry policy and I don’t think it is proper for this group to suggest that it is or should be the arbiter of what individual Registry policy is acceptable versus which should have been effectuated through an RSEP. Brian Cimbolic Deputy General Counsel, Public Interest Registry Office: +1 703 889-5752| Mobile: + 1 571 385-7871| www.pir.org<http://www.pir.org/> | Facebook<http://www.facebook.com/PIRegistry> | Twitter<http://twitter.com/PIRegistry> | Instagram<http://instagram.com/PIRegistry> | YouTube<http://www.youtube.com/PIRegistry> Confidentiality Note: Proprietary and confidential to Public Interest Registry. If received in error, please inform sender and then delete. From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, December 07, 2016 1:22 AM To: Mary Wong <mary.wong@icann.org> 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 I 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<mailto: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<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of icann@leap.com<mailto: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<http://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<tel:416-588-0269> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DgICAg&c... On Sun, Dec 4, 2016 at 12:25 PM, David Tait <david.tait@icann.org<mailto: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<tel:%2B%2044-7864-793776> > > Email: david.tait@icann.org<mailto:david.tait@icann.org> > > www.icann.org<http://www.icann.org> > > > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Weighing in a bit, in response to all the statements so far in regard to the Co-Chair statement – I believe that those who read into the Co-Chair statement an advocacy for any particular outcome are incorrect – it will be the members of the WG who shape our inquiry, much less any conclusions to be drawn from it. That said, the Co-Chairs are of a unanimous view that we cannot conduct a review of the “the effectiveness of the relevant RPM(s)” and “the interplay between and complementary roles of each RPM”, and determine “whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed” as well as “have all the RPMs, in the aggregate, been sufficient to meet their objectives or do new or additional mechanisms, or changes to existing RPMs, need to be developed”, without taking some notice and examination of the additional protections that are being provided in the marketplace. Those additional protections clearly also interplay with the basic ICANN-mandated protections, and influence their use (e.g., blocking services are marketed as a less expensive alternative to sunrise registrations). They also may be instructive as to whether additional mechanisms or changes to the existing RPMs should be developed. Further, where such services are based upon a precondition of TMCH registrations, the Co-Chairs believe that “In addition to our general rationale for the suggested inquiry, the Co-Chairs believe that the indisputable tie between market-provided domain blocking services and the TMCH provides this WG with clear Charter-based jurisdiction to review such services.” In other words, as the operation and use of the TMCH is clearly within the WG Charter, the its use by registry operators for other services can be inquired into. Again, the fact that inquiry will be made does not mean that they will lead to any particular conclusion by the WG. I look forward to continued discussion of this matter. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Brian F. Cimbolic Sent: Wednesday, December 07, 2016 10:17 AM To: Greg Shatan; Mary Wong 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 I agree with Greg and think the two paragraphs he quoted are troublesome. Sure, taking a look at existing private RPMs as guidance as to what may work/what is feasible makes sense. Somehow claiming that the working group has “jurisdiction” over private RPMs or opining that any private RPM needed to go through an RSEP is another matter. The private RPMs are created by Registry policy and I don’t think it is proper for this group to suggest that it is or should be the arbiter of what individual Registry policy is acceptable versus which should have been effectuated through an RSEP. Brian Cimbolic Deputy General Counsel, Public Interest Registry Office: +1 703 889-5752| Mobile: + 1 571 385-7871| www.pir.org<http://www.pir.org/> | Facebook<http://www.facebook.com/PIRegistry> | Twitter<http://twitter.com/PIRegistry> | Instagram<http://instagram.com/PIRegistry> | YouTube<http://www.youtube.com/PIRegistry> Confidentiality Note: Proprietary and confidential to Public Interest Registry. If received in error, please inform sender and then delete. From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, December 07, 2016 1:22 AM To: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto: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 I 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<mailto: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<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of icann@leap.com<mailto: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<http://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<tel:416-588-0269> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DgICAg&c... On Sun, Dec 4, 2016 at 12:25 PM, David Tait <david.tait@icann.org<mailto: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<tel:%2B%2044-7864-793776> > > Email: david.tait@icann.org<mailto:david.tait@icann.org> > > www.icann.org<http://www.icann.org> > > > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ No virus found in this message. 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participants (7)
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Brian F. Cimbolic -
Greg Shatan -
J. Scott Evans -
Justine Chew -
Kiran Malancharuvil -
Mary Wong -
Phil Corwin