Proposal to Shift URS review to Phase II
Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group's charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The "third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program." 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group ("RPM Working Group"). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP's Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP's Charter were broadly defined: "In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future." 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled "LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP" This "list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue". This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a "cybersquatter"? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group "should look like". (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS ("Transcript") at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have "more defined issues, [be] more bounded, more limited." (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that "that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience." (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant's country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder's product. 4. Cannot determine on what date the domain name was "registered" by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a "competitor" that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. [http://www.nelsonmullins.com/img/ecard-logo.png] JOHN C. MCELWAINE PARTNER john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com> LIBERTY CENTER | SUITE 600 151 MEETING STREET | CHARLESTON, SC 29401 T 843.534.4302 F 843.722.8700 101 CONSTITUTION AVENUE, NW | SUITE 900 WASHINGTON, D.C., 20001 T 202.689.2939 F 202.689.2862 NELSONMULLINS.COM<http://www.nelsonmullins.com> VCARD<http://www.nelsonmullins.com/people/john-mcelwaine/vcard> VIEW BIO<http://www.nelsonmullins.com/people/john-mcelwaine> Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. 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Hi folks, I oppose this attempt to alter the work plan of this PDP. Without going into exhaustive detail as to why, consider that Point #5 contains questions that are in the charter, and thus *are* by definition within the scope of our work. That's axiomatic. It seems to me that this is just an attempt to alter the charter to remove items that are "uncomfortable questions" for some stakeholders. They're in the charter because they're important concerns that a review must address. Also, Recommendation #1 claims that our work is "well-advanced", to the point that an initial report can be issued. How that can this be asserted, when we've not even received and/or collected important data on these topics? Policymaking needs to be evidence-based, and that evidence/data is still being collected (or has been collected, like the top 500 TMCH terms that I requested a year ago, but has not been delivered, despite repeated requests). What I find strange is how the ICANN61 meeting seems to have actually *negatively* impacted the work of the PDP, in terms of number of actual meetings. Prior to ICANN61, there was no call because some folks would be traveling to San Juan. After ICANN61, there was no call presumably because some folks would be traveling to return home from San Juan. So it seems that we're down 2 sessions automatically for each ICANN meeting! While there were 4 sessions in San Juan, subtracting 2 (due to cancelled calls the week before and the week after) actually means that there were effecitvely just 2. And 1 would have happened naturally that week, so we're really just ahead, after all is said and done, by 1 session on a net basis! However, we didn't have calls on March 29 or April 5th, so in fact we're now *down* by 1 session, instead of being up by 1 session. This PDP began in March 2016: https://mm.icann.org/pipermail/gnso-rpm-wg/2016-March/date.html which is roughly 100 weeks ago. However, according to the attendance log: https://community.icann.org/display/RARPMRIAGPWG/Attendance+Log we've actually held a total of just 67 "weekly" calls (rather than 100 weekly calls, had the number of actual weekly calls matched the actual potential number of weekly calls during those 2 years). So, in terms of "effective workload", we seem to have worked at under 70% of our potential in that 2 year time period. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Thu, Apr 5, 2018 at 9:54 PM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model- 08mar18-en.pdf. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
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George, in response to your second paragraph, we certainly did have calls on Wednesday 28 March and 4 April: URS Practitioners Subteam – 28 March and 4 April URS Providers Subteam – 28 March and 4 April There also appear to be further meetings for the Practitioners Sub and the Data Sub scheduled for today, 6 April. Just because the full working group may not be meeting, and you have chosen not to volunteer for any of the subteams, does not mean that productive work is not taking place amongst those who have volunteered. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 06 April 2018 12:22 To: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi folks, I oppose this attempt to alter the work plan of this PDP. Without going into exhaustive detail as to why, consider that Point #5 contains questions that are in the charter, and thus *are* by definition within the scope of our work. That's axiomatic. It seems to me that this is just an attempt to alter the charter to remove items that are "uncomfortable questions" for some stakeholders. They're in the charter because they're important concerns that a review must address. Also, Recommendation #1 claims that our work is "well-advanced", to the point that an initial report can be issued. How that can this be asserted, when we've not even received and/or collected important data on these topics? Policymaking needs to be evidence-based, and that evidence/data is still being collected (or has been collected, like the top 500 TMCH terms that I requested a year ago, but has not been delivered, despite repeated requests). What I find strange is how the ICANN61 meeting seems to have actually *negatively* impacted the work of the PDP, in terms of number of actual meetings. Prior to ICANN61, there was no call because some folks would be traveling to San Juan. After ICANN61, there was no call presumably because some folks would be traveling to return home from San Juan. So it seems that we're down 2 sessions automatically for each ICANN meeting! While there were 4 sessions in San Juan, subtracting 2 (due to cancelled calls the week before and the week after) actually means that there were effecitvely just 2. And 1 would have happened naturally that week, so we're really just ahead, after all is said and done, by 1 session on a net basis! However, we didn't have calls on March 29 or April 5th, so in fact we're now *down* by 1 session, instead of being up by 1 session. This PDP began in March 2016: https://mm.icann.org/pipermail/gnso-rpm-wg/2016-March/date.html which is roughly 100 weeks ago. However, according to the attendance log: https://community.icann.org/display/RARPMRIAGPWG/Attendance+Log we've actually held a total of just 67 "weekly" calls (rather than 100 weekly calls, had the number of actual weekly calls matched the actual potential number of weekly calls during those 2 years). So, in terms of "effective workload", we seem to have worked at under 70% of our potential in that 2 year time period. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Thu, Apr 5, 2018 at 9:54 PM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. JOHN C. MCELWAINE PARTNER john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com> LIBERTY CENTER | SUITE 600 151 MEETING STREET | CHARLESTON, SC 29401 T 843.534.4302 F 843.722.8700 101 CONSTITUTION AVENUE, NW | SUITE 900 WASHINGTON, D.C., 20001 T 202.689.2939 F 202.689.2862 NELSONMULLINS.COM<http://www.nelsonmullins.com> VCARD<http://www.nelsonmullins.com/people/john-mcelwaine/vcard> VIEW BIO<http://www.nelsonmullins.com/people/john-mcelwaine> Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. 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*it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures* That is quite a precise skill set, did you have someone in mind? On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model- 08mar18-en.pdf. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
*[image: http://www.nelsonmullins.com/img/ecard-logo.png]*
*JOHN C. MCELWAINE **PARTNER*
*john.mcelwaine@nelsonmullins.com <john.mcelwaine@nelsonmullins.com> *
*LIBERTY CENTER | SUITE 600 *
*151 MEETING STREET | CHARLESTON, SC 29401*
*T** 843.534.4302 **F** 843.722.8700 *
*101 CONSTITUTION AVENUE, NW | SUITE 900*
*WASHINGTON, D.C., 20001*
*T** 202.689.2939 **F** 202.689.2862 *
*NELSONMULLINS.COM <http://www.nelsonmullins.com> VCARD <http://www.nelsonmullins.com/people/john-mcelwaine/vcard> VIEW BIO <http://www.nelsonmullins.com/people/john-mcelwaine> *
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Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
*it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures* That is quite a precise skill set, did you have someone in mind?
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance- interim-model-08mar18-en.pdf. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
*[image: http://www.nelsonmullins.com/img/ecard-logo.png]*
*JOHN C. MCELWAINE **PARTNER*
*john.mcelwaine@nelsonmullins.com <john.mcelwaine@nelsonmullins.com> *
*LIBERTY CENTER | SUITE 600 *
*151 MEETING STREET | CHARLESTON, SC 29401*
*T** 843.534.4302 **F** 843.722.8700 *
*101 CONSTITUTION AVENUE, NW | SUITE 900*
*WASHINGTON, D.C., 20001*
*T** 202.689.2939 **F** 202.689.2862 *
*NELSONMULLINS.COM <http://www.nelsonmullins.com> VCARD <http://www.nelsonmullins.com/people/john-mcelwaine/vcard> VIEW BIO <http://www.nelsonmullins.com/people/john-mcelwaine> *
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This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure.
If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately either by phone (800-237-2000) or reply to this e-mail and delete all copies of this message.
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Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
*it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures* That is quite a precise skill set, did you have someone in mind?
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance- interim-model-08mar18-en.pdf. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
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Please excuse my naivete, but what’s the problem? John suggested we have a single PDP chair for the next phase and that the chair be neutral, experienced & understand the process. I think all of that is fair & desirable. I also think there are any number of people who may be appropriate. The WG now needs to decide: * Should there be any other requirements * Nominees Cyntia King E: cking@modernip O: +1 81-ModernIP C: +1 818.209.6088 From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Paul Tattersfield Sent: Monday, April 9, 2018 5:02 AM To: Greg Shatan <gregshatanipc@gmail.com> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com <mailto:gpmgroup@gmail.com> > wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? <https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gif> On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com <mailto:john.mcelwaine@nelsonmullins.com> > wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <http://www.nelsonmullins.com/img/ecard-logo.png> JOHN C. 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Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.
I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.
Kind regards,
Paul.
On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
*it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures* That is quite a precise skill set, did you have someone in mind?
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
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Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria.
Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled.
Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process.
Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.)
The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land.
Thoughts?
Greg
On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.
I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.
Kind regards,
Paul.
On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
*it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures* That is quite a precise skill set, did you have someone in mind?
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr- compliance-interim-model-08mar18-en.pdf. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
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Paul, Sorry for not responding sooner. I’ve just been busy at work. It is important to note that my last comment is (a) unrelated to the proposal and (b) primarily made to point out a structural issue that I perceive in the current set up of the Working Group – It is not a commentary on the qualities of any particular person, nor do I have any one particular person in mind. I should have provided more color to my comment, which I will do so now. As you know, the Working Group was structured with Co-Chairs aligned (and even representing) business interests, domain name owners’ interests and users’ interests. My belief is that institutionalizing differing world-views (some may say divisions) at the Working Group leadership level has created an environment where it is more difficult to achieve consensus. My comment was merely to suggest that a single chairperson with leadership qualities and skills to achieve consensus should be considered for Phase II. As a result, their “hat” should stay on their head a vast majority of the time. To this point, I fully endorse your recommended qualities of openness, agreeableness, humility and a high moral compass. My list was not meant to be complete. Best, John From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Tattersfield Sent: Friday, April 13, 2018 12:13 PM To: Greg Shatan <gregshatanipc@gmail.com> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? [https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gif] On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08mar18-en.pdf<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_gdpr-2Dcompliance-2Dinterim-2Dmodel-2D08mar18-2Den.pdf&d=DwMFaQ&c=qmi9WrYRGQEDDOxOwKrAjW7mWovpzN_EKyRbeK_zbP0&r=Kepk-9GEB6JgOj0vUGl8c0hdrRM7FW-8Is-VAQU1VAk&m=9hEgWux6Ckjtc_hpqOSNDs4bANpazHK_xxtNUTX63RI&s=12d7nDTfMOOpH3tIaH8muppQtSGZBP_h3NcRgtSPtuQ&e=>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. [http://www.nelsonmullins.com/img/ecard-logo.png] JOHN C. 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Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt
On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg,
It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level:
Clearly the 3 qualities John identified are important basic competencies.
I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient?
I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards.
Kind regards,
Paul.
On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: Paul,
Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria.
Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled.
Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process.
Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.)
The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land.
Thoughts?
Greg
On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com <mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.
I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.
Kind regards,
Paul.
On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com <mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures
That is quite a precise skill set, did you have someone in mind?
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com <mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08... <https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08...>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
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+1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? [https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gif] On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. [http://www.nelsonmullins.com/img/ecard-logo.png] JOHN C. 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One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon
On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
+1 on moving the URS to phase 2. Georges N <>
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Hi John (and everyone):
Thank you to John for taking the time to put together this cogent document.
I support moving the URS discussion to phase II for the reasons John cited and others.
As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that.
For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs.
The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round.
John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I).
While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision.
I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics).
Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II.
I find the discussion of the chairmanship irrelevant to the discussion also.
Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II.
Best regards,
Kurt
On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com <mailto:gpmgroup@gmail.com>> wrote:
Greg,
It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level:
Clearly the 3 qualities John identified are important basic competencies.
I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient?
I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards.
Kind regards,
Paul.
On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: Paul,
Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria.
Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled.
Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process.
Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.)
The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land.
Thoughts?
Greg
On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com <mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.
I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.
Kind regards,
Paul.
On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com <mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures
That is quite a precise skill set, did you have someone in mind?
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com <mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08... <https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08...>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
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Jon: Thanks to you and the others who are weighing in on John’s proposal. The co-chairs encourage further input from other WG members no matter where on the spectrum your views fall. Everyone have a great weekend. Best, Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 2:43 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com> Cc: gnso-rpm-wg@icann.org Subject: [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? <https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gif> On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <http://www.nelsonmullins.com/img/ecard-logo.png> JOHN C. MCELWAINE PARTNER john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com> LIBERTY CENTER | SUITE 600 <https://maps.google.com/?q=SUITE+600%0D%0A+%0D%0A+151+MEETING+STREET%C2%A0%7...> 151 MEETING STREET | CHARLESTON, SC 29401<https://maps.google.com/?q=SUITE+600%0D%0A+%0D%0A+151+MEETING+STREET%C2%A0%7...> T 843.534.4302 F 843.722.8700 101 CONSTITUTION AVENUE, NW | SUITE 900<https://maps.google.com/?q=101+CONSTITUTION+AVENUE,+NW%C2%A0%7C%C2%A0SUITE+9...> WASHINGTON, D.C., 20001<https://maps.google.com/?q=101+CONSTITUTION+AVENUE,+NW%C2%A0%7C%C2%A0SUITE+9...> T 202.689.2939 F 202.689.2862 NELSONMULLINS.COM<http://www.nelsonmullins.com/> VCARD<http://www.nelsonmullins.com/people/john-mcelwaine/vcard> VIEW BIO<http://www.nelsonmullins.com/people/john-mcelwaine> Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. 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Hi Jon, Could you explain/unpack that a little bit. Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard. Or are you referring to the standard of review for appeals cases? Sorry for a perhaps basic question, and thanks! Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? [Image removed by sender.] On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. [Image removed by sender. http://www.nelsonmullins.com/img/ecard-logo.png] JOHN C. 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One way in which the URS burden of proof differs substantially from UDRP is that the URS requires that "For a URS matter to conclude in favor of the Complainant, the Examiner shall render a Determination that there is* no genuine issue of material fact*." (URS Procedure 8.3). This is the same burden as the URS summary judgment. It bears noting that I haven't seen this language mentioned by any URS arbitrator in any cases which I've reviewed. Jonathan On Mon, Apr 16, 2018 at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int> wrote:
Hi Jon,
Could you explain/unpack that a little bit.
Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard.
Or are you referring to the standard of review for appeals cases?
Sorry for a perhaps basic question, and thanks!
Brian
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *Jon Nevett *Sent:* Friday, April 13, 2018 8:43 PM *To:* Nahitchevansky, Georges *Cc:* gnso-rpm-wg@icann.org
*Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
One alternative is to split the URS review into two parts.
As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later.
Just an idea for a middle ground if folks want one.
Jon
On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
+1 on moving the URS to phase 2. Georges N
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Kurt Pritz *Sent:* Friday, April 13, 2018 2:06 PM *To:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Hi John (and everyone):
Thank you to John for taking the time to put together this cogent document.
I support moving the URS discussion to phase II for the reasons John cited and others.
As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that.
For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs.
The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round.
John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I).
While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision.
I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics).
Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II.
I find the discussion of the chairmanship irrelevant to the discussion also.
Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II.
Best regards,
Kurt
On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg,
It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level:
Clearly the 3 qualities John identified are important basic competencies.
I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient?
I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards.
Kind regards,
Paul.
On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria.
Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled.
Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process.
Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.)
The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land.
Thoughts?
Greg
On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.
I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.
Kind regards,
Paul.
On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
*it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures*
That is quite a precise skill set, did you have someone in mind?
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On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model- 08mar18-en.pdf. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
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URS Procedure 8.3 cited in Reinalt-Thomas Corporation d.b.a Discount Tire v. Extreme Customs, LLC et al., FA1709001749615 (Forum October 4, 2017) (<discounttire.direct>. If anyone wants to know what “clear and convincing evidence” means it is spelled out in 5.4.3, 8.3, and 8.5. A number of the complaint-denied decisions are no nonsense on the burden of proof. URS Procedure 5.4.3: “The claim must be dismissed if Examiner finds any “defense which contradicts the Complainant’s claims” and URS Procedure 8.5. “Where there is any genuine contestable issue as to whether a domain name registration and use of a trademark are in bad faith, the Complaint will be denied…. The URS is not intended for use in any proceedings with open questions of fact, but only clear cases of trademark abuse. (my emphases). Gerald M. Levine From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jonathan Frost Sent: Monday, April 16, 2018 9:34 AM To: BECKHAM, Brian <brian.beckham@wipo.int> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One way in which the URS burden of proof differs substantially from UDRP is that the URS requires that "For a URS matter to conclude in favor of the Complainant, the Examiner shall render a Determination that there is no genuine issue of material fact." (URS Procedure 8.3). This is the same burden as the URS summary judgment. It bears noting that I haven't seen this language mentioned by any URS arbitrator in any cases which I've reviewed. Jonathan On Mon, Apr 16, 2018 at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int <mailto:brian.beckham@wipo.int> > wrote: Hi Jon, Could you explain/unpack that a little bit. Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard. Or are you referring to the standard of review for appeals cases? Sorry for a perhaps basic question, and thanks! Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> ] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [ <mailto:gnso-rpm-wg-bounces@icann.org> mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield < <mailto:gpmgroup@gmail.com> gpmgroup@gmail.com> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. >From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield < <mailto:gpmgroup@gmail.com> gpmgroup@gmail.com> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield < <mailto:gpmgroup@gmail.com> gpmgroup@gmail.com> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < <mailto:john.mcelwaine@nelsonmullins.com> john.mcelwaine@nelsonmullins.com> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: <https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08...> https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. JOHN C. 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Sure Brian. People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US. My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction. Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try? Hope that clarifies my question. Thanks! Jon
On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int> wrote:
Hi Jon,
Could you explain/unpack that a little bit.
Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard.
Or are you referring to the standard of review for appeals cases?
Sorry for a perhaps basic question, and thanks!
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
One alternative is to split the URS review into two parts.
As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later.
Just an idea for a middle ground if folks want one.
Jon
On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote:
+1 on moving the URS to phase 2. Georges N <>
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Hi John (and everyone):
Thank you to John for taking the time to put together this cogent document.
I support moving the URS discussion to phase II for the reasons John cited and others.
As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that.
For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs.
The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round.
John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I).
While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision.
I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics).
Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II.
I find the discussion of the chairmanship irrelevant to the discussion also.
Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II.
Best regards,
Kurt
On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com <mailto:gpmgroup@gmail.com>> wrote:
Greg,
It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level:
Clearly the 3 qualities John identified are important basic competencies.
I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient?
I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards.
Kind regards,
Paul.
On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: Paul,
Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria.
Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled.
Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process.
Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.)
The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land.
Thoughts?
Greg
On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com <mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.
I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.
Kind regards,
Paul.
On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com <mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures
That is quite a precise skill set, did you have someone in mind? <~WRD000.jpg>
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com <mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08... <https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08...>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
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I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database). Gerald M. Levine From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jon Nevett Sent: Monday, April 16, 2018 11:02 AM To: Brian Beckham <brian.beckham@wipo.int> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Sure Brian. People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US. My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction. Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try? Hope that clarifies my question. Thanks! Jon On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int <mailto:brian.beckham@wipo.int> > wrote: Hi Jon, Could you explain/unpack that a little bit. Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard. Or are you referring to the standard of review for appeals cases? Sorry for a perhaps basic question, and thanks! Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [ <mailto:gnso-rpm-wg-bounces@icann.org> mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield < <mailto:gpmgroup@gmail.com> gpmgroup@gmail.com> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. >From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield < <mailto:gpmgroup@gmail.com> gpmgroup@gmail.com> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield < <mailto:gpmgroup@gmail.com> gpmgroup@gmail.com> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? <~WRD000.jpg> On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < <mailto:john.mcelwaine@nelsonmullins.com> john.mcelwaine@nelsonmullins.com> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: <https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08...> https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <image001.jpg> JOHN C. 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All, Quick question: I recently reviewed the operative text in our Charter (copied below) and it's not clear to me whether our Initial Report, which will be produced at the conclusion of Phase I activity, is intended to include policy recommendations for GNSO Council/Board approval? The Charter states that a Final Report will be produced at the end of Phase II, which will be sent to the GNSO Council "for its consideration and further action". However, the same language is not used in the section on the Initial Report, which the Charter states: "shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two." I also looked at the GNSO's "PDP Manual", and the "WG Guidelines" document, which indicate the Final Report is the mechanism through which policy recommendations are delivered to the Council, see: https://gnso.icann.org/sites/default/files/filefield_48599/annex-2-pdp-manua... at page 7. At your convenience, can the Co-Chairs and/or staff please provide feedback or clarification on this point? Thanks! Best regards, Claudio --- Deliverables & Timeframes: In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One On Mon, Apr 16, 2018 at 12:53 PM, <gmlevine@researchtheworld.com> wrote:
I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database).
Gerald M. Levine
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jon Nevett *Sent:* Monday, April 16, 2018 11:02 AM *To:* Brian Beckham <brian.beckham@wipo.int> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Sure Brian.
People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US.
My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction.
Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try?
Hope that clarifies my question.
Thanks!
Jon
On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int> wrote:
Hi Jon,
Could you explain/unpack that a little bit.
Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard.
Or are you referring to the standard of review for appeals cases?
Sorry for a perhaps basic question, and thanks!
Brian
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Jon Nevett *Sent:* Friday, April 13, 2018 8:43 PM *To:* Nahitchevansky, Georges *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
One alternative is to split the URS review into two parts.
As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later.
Just an idea for a middle ground if folks want one.
Jon
On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
+1 on moving the URS to phase 2. Georges N
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Kurt Pritz *Sent:* Friday, April 13, 2018 2:06 PM *To:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Hi John (and everyone):
Thank you to John for taking the time to put together this cogent document.
I support moving the URS discussion to phase II for the reasons John cited and others.
As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that.
For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs.
The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round.
John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I).
While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision.
I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics).
Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II.
I find the discussion of the chairmanship irrelevant to the discussion also.
Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II.
Best regards,
Kurt
On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg,
It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level:
Clearly the 3 qualities John identified are important basic competencies.
I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient?
I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards.
Kind regards,
Paul.
On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria.
Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled.
Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process.
Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.)
The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land.
Thoughts?
Greg
On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.
I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.
Kind regards,
Paul.
On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
*it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures*
That is quite a precise skill set, did you have someone in mind?
<~WRD000.jpg>
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model- 08mar18-en.pdf. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
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Hello Claudio and everyone, The staff understanding of the text for those parts of the Charter that you highlighted is that it was intended to provide the Working Group and GNSO Council with as much flexibility as possible, while still staying within the GNSO’s operating rules and the requirements of the PDP Manual. Basically, having the Charter state expressly that an Initial Report is required at the end of Phase One makes it clear that there must be a specific deliverable and it must be published for public comment. Given, however, that at the outset of a PDP such as this one (i.e. conducted in two phases) the various outcomes or recommendations (if any) that may be agreed on by the Working Group at the end of this Phase One cannot possibly be known, it was considered appropriate to have the language note that “at a minimum” (emphasis added) the group’s progress is described, with any preliminary recommendations also reported. For example, it is possible that the Working Group may develop consensus recommendations for new or modified Consensus Policies around any of the Phase One RPMs – this will allow the Working Group to then develop a Final Report (per the PDP Manual) just for these specific Phase One recommendations. Alternatively, the Working Group could reach a point where it believes its work and progress will benefit from either community input on potential (rather than agreed) recommendations, or from GNSO Council guidance as to whether to proceed to work on specific recommendations that may impact work in Phase Two, or both – in this scenario, an Initial Report seeking that type of input may be appropriate, without there being any specific consensus policy recommendations. The Working Group could also decide to recommend postponing implementation of, or revisiting certain, Phase One recommendations pending additional research or work in Phase Two, as another example. Building in as much flexibility as possible therefore means that multiple potential outcomes are not prematurely curtailed, even before the PDP has kicked off. As phrased, the Charter certainly allows the Working Group to decide, based on the contents of its Initial Report and consequent public comment, that certain policy recommendations are ready for approval by the GNSO Council – in this scenario, the Charter does not preclude the group from then working on a Final Report in accordance with the steps and requirements of the PDP Manual, to be presented to the Council for its vote and action at the end of Phase One. We hope this helps – please let staff know if there are additional questions or if we can clarify anything further. Cheers Mary, Julie, Ariel & Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of claudio di gangi <ipcdigangi@gmail.com> Date: Tuesday, April 17, 2018 at 12:48 To: "gmlevine@researchtheworld.com" <gmlevine@researchtheworld.com> Cc: "J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II All, Quick question: I recently reviewed the operative text in our Charter (copied below) and it's not clear to me whether our Initial Report, which will be produced at the conclusion of Phase I activity, is intended to include policy recommendations for GNSO Council/Board approval? The Charter states that a Final Report will be produced at the end of Phase II, which will be sent to the GNSO Council "for its consideration and further action". However, the same language is not used in the section on the Initial Report, which the Charter states: "shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two." I also looked at the GNSO's "PDP Manual", and the "WG Guidelines" document, which indicate the Final Report is the mechanism through which policy recommendations are delivered to the Council, see: https://gnso.icann.org/sites/default/files/filefield_48599/annex-2-pdp-manual-16feb16-en.pdf[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_default_files_filefield-5F48599_annex-2D2-2Dpdp-2Dmanual-2D16feb16-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=RnOXmJJVjZsnSKXyvZTAOuZgVHiLar6a61gljWbBFTM&e=> at page 7. At your convenience, can the Co-Chairs and/or staff please provide feedback or clarification on this point? Thanks! Best regards, Claudio --- Deliverables & Timeframes: In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One On Mon, Apr 16, 2018 at 12:53 PM, <gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>> wrote: I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database). Gerald M. Levine From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jon Nevett Sent: Monday, April 16, 2018 11:02 AM To: Brian Beckham <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Sure Brian. People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US. My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction. Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try? Hope that clarifies my question. Thanks! Jon On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> wrote: Hi Jon, Could you explain/unpack that a little bit. Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard. Or are you referring to the standard of review for appeals cases? Sorry for a perhaps basic question, and thanks! Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? <~WRD000.jpg> On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08mar18-en.pdf[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_gdpr-2Dcompliance-2Dinterim-2Dmodel-2D08mar18-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=kTHgi36Qi8MgQE8e_1fYLzYqUSmGl-_6mvivqB0ogDI&e=>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <image001.jpg> JOHN C. 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Mary, Thank you, very helpful. I think flexibility is a good thing to have, especially in the fluid environment in which we operate. Best regards, Claudio On Tue, Apr 17, 2018 at 2:30 PM, Mary Wong <mary.wong@icann.org> wrote:
Hello Claudio and everyone,
The staff understanding of the text for those parts of the Charter that you highlighted is that it was intended to provide the Working Group and GNSO Council with as much flexibility as possible, while still staying within the GNSO’s operating rules and the requirements of the PDP Manual.
Basically, having the Charter state expressly that an Initial Report is required at the end of Phase One makes it clear that there must be a specific deliverable and it must be published for public comment. Given, however, that at the outset of a PDP such as this one (i.e. conducted in two phases) the various outcomes or recommendations (if any) that may be agreed on by the Working Group at the end of this Phase One cannot possibly be known, it was considered appropriate to have the language note that *“at a minimum”* (emphasis added) the group’s progress is described, with any preliminary recommendations also reported. For example, it is possible that the Working Group may develop consensus recommendations for new or modified Consensus Policies around any of the Phase One RPMs – this will allow the Working Group to then develop a Final Report (per the PDP Manual) just for these specific Phase One recommendations. Alternatively, the Working Group could reach a point where it believes its work and progress will benefit from either community input on potential (rather than agreed) recommendations, or from GNSO Council guidance as to whether to proceed to work on specific recommendations that may impact work in Phase Two, or both – in this scenario, an Initial Report seeking that type of input may be appropriate, without there being any specific consensus policy recommendations. The Working Group could also decide to recommend postponing implementation of, or revisiting certain, Phase One recommendations pending additional research or work in Phase Two, as another example.
Building in as much flexibility as possible therefore means that multiple potential outcomes are not prematurely curtailed, even before the PDP has kicked off. As phrased, the Charter certainly allows the Working Group to decide, based on the contents of its Initial Report and consequent public comment, that certain policy recommendations are ready for approval by the GNSO Council – in this scenario, the Charter does not preclude the group from then working on a Final Report in accordance with the steps and requirements of the PDP Manual, to be presented to the Council for its vote and action at the end of Phase One.
We hope this helps – please let staff know if there are additional questions or if we can clarify anything further.
Cheers
Mary, Julie, Ariel & Berry
*From: *gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of claudio di gangi <ipcdigangi@gmail.com> *Date: *Tuesday, April 17, 2018 at 12:48 *To: *"gmlevine@researchtheworld.com" <gmlevine@researchtheworld.com> *Cc: *"J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org> *Subject: *Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
All,
Quick question: I recently reviewed the operative text in our Charter (copied below) and it's not clear to me whether our Initial Report, which will be produced at the conclusion of Phase I activity, is intended to include policy recommendations for GNSO Council/Board approval?
The Charter states that a Final Report will be produced at the end of Phase II, which will be sent to the GNSO Council "for its consideration and further action".
However, the same language is not used in the section on the Initial Report, which the Charter states: "shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two."
I also looked at the GNSO's "PDP Manual", and the "WG Guidelines" document, which indicate the Final Report is the mechanism through which policy recommendations are delivered to the Council, see: https://gnso.icann.org/sites/default/files/filefield_48599/ annex-2-pdp-manual-16feb16-en.pdf[gnso.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_de...> at page 7.
At your convenience, can the Co-Chairs and/or staff please provide feedback or clarification on this point?
Thanks!
Best regards,
Claudio
---
Deliverables & Timeframes:
In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One
On Mon, Apr 16, 2018 at 12:53 PM, <gmlevine@researchtheworld.com> wrote:
I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database).
Gerald M. Levine
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jon Nevett *Sent:* Monday, April 16, 2018 11:02 AM *To:* Brian Beckham <brian.beckham@wipo.int> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Sure Brian.
People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US.
My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction.
Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try?
Hope that clarifies my question.
Thanks!
Jon
On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int> wrote:
Hi Jon,
Could you explain/unpack that a little bit.
Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard.
Or are you referring to the standard of review for appeals cases?
Sorry for a perhaps basic question, and thanks!
Brian
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Jon Nevett *Sent:* Friday, April 13, 2018 8:43 PM *To:* Nahitchevansky, Georges *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
One alternative is to split the URS review into two parts.
As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later.
Just an idea for a middle ground if folks want one.
Jon
On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
+1 on moving the URS to phase 2. Georges N
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Kurt Pritz *Sent:* Friday, April 13, 2018 2:06 PM *To:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Hi John (and everyone):
Thank you to John for taking the time to put together this cogent document.
I support moving the URS discussion to phase II for the reasons John cited and others.
As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that.
For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs.
The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round.
John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I).
While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision.
I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics).
Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II.
I find the discussion of the chairmanship irrelevant to the discussion also.
Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II.
Best regards,
Kurt
On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg,
It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level:
Clearly the 3 qualities John identified are important basic competencies.
I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient?
I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards.
Kind regards,
Paul.
On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria.
Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled.
Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process.
Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.)
The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land.
Thoughts?
Greg
On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.
I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.
Kind regards,
Paul.
On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
*it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures*
That is quite a precise skill set, did you have someone in mind?
<~WRD000.jpg>
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model- 08mar18-en.pdf[icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system...>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
*<image001.jpg>*
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Thanks for the excellent summary/explanation, Mary. Speaking personally, I would hope and expect that if the WG reaches consensus on any recommend changes to the TMCH, Claims Notice, and Sunrise Registrations that we would issue a Final Report at the conclusion of Phase One – noting that it is the WG, not the co-chairs, who will either reach consensus or not. That would permit any such changes to be in place for the next round of new gTLDs. I did not mention URS in the preceding paragraph because we have an ongoing dialogue on that. Best, Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of claudio di gangi Sent: Tuesday, April 17, 2018 2:53 PM To: Mary Wong <mary.wong@icann.org> Cc: gnso-rpm-wg@icann.org Subject: [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Mary, Thank you, very helpful. I think flexibility is a good thing to have, especially in the fluid environment in which we operate. Best regards, Claudio On Tue, Apr 17, 2018 at 2:30 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello Claudio and everyone, The staff understanding of the text for those parts of the Charter that you highlighted is that it was intended to provide the Working Group and GNSO Council with as much flexibility as possible, while still staying within the GNSO’s operating rules and the requirements of the PDP Manual. Basically, having the Charter state expressly that an Initial Report is required at the end of Phase One makes it clear that there must be a specific deliverable and it must be published for public comment. Given, however, that at the outset of a PDP such as this one (i.e. conducted in two phases) the various outcomes or recommendations (if any) that may be agreed on by the Working Group at the end of this Phase One cannot possibly be known, it was considered appropriate to have the language note that “at a minimum” (emphasis added) the group’s progress is described, with any preliminary recommendations also reported. For example, it is possible that the Working Group may develop consensus recommendations for new or modified Consensus Policies around any of the Phase One RPMs – this will allow the Working Group to then develop a Final Report (per the PDP Manual) just for these specific Phase One recommendations. Alternatively, the Working Group could reach a point where it believes its work and progress will benefit from either community input on potential (rather than agreed) recommendations, or from GNSO Council guidance as to whether to proceed to work on specific recommendations that may impact work in Phase Two, or both – in this scenario, an Initial Report seeking that type of input may be appropriate, without there being any specific consensus policy recommendations. The Working Group could also decide to recommend postponing implementation of, or revisiting certain, Phase One recommendations pending additional research or work in Phase Two, as another example. Building in as much flexibility as possible therefore means that multiple potential outcomes are not prematurely curtailed, even before the PDP has kicked off. As phrased, the Charter certainly allows the Working Group to decide, based on the contents of its Initial Report and consequent public comment, that certain policy recommendations are ready for approval by the GNSO Council – in this scenario, the Charter does not preclude the group from then working on a Final Report in accordance with the steps and requirements of the PDP Manual, to be presented to the Council for its vote and action at the end of Phase One. We hope this helps – please let staff know if there are additional questions or if we can clarify anything further. Cheers Mary, Julie, Ariel & Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of claudio di gangi <ipcdigangi@gmail.com<mailto:ipcdigangi@gmail.com>> Date: Tuesday, April 17, 2018 at 12:48 To: "gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>" <gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>> Cc: "J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II All, Quick question: I recently reviewed the operative text in our Charter (copied below) and it's not clear to me whether our Initial Report, which will be produced at the conclusion of Phase I activity, is intended to include policy recommendations for GNSO Council/Board approval? The Charter states that a Final Report will be produced at the end of Phase II, which will be sent to the GNSO Council "for its consideration and further action". However, the same language is not used in the section on the Initial Report, which the Charter states: "shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two." I also looked at the GNSO's "PDP Manual", and the "WG Guidelines" document, which indicate the Final Report is the mechanism through which policy recommendations are delivered to the Council, see: https://gnso.icann.org/sites/default/files/filefield_48599/annex-2-pdp-manual-16feb16-en.pdf[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_default_files_filefield-5F48599_annex-2D2-2Dpdp-2Dmanual-2D16feb16-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=RnOXmJJVjZsnSKXyvZTAOuZgVHiLar6a61gljWbBFTM&e=> at page 7. At your convenience, can the Co-Chairs and/or staff please provide feedback or clarification on this point? Thanks! Best regards, Claudio --- Deliverables & Timeframes: In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One On Mon, Apr 16, 2018 at 12:53 PM, <gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>> wrote: I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database). Gerald M. Levine From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jon Nevett Sent: Monday, April 16, 2018 11:02 AM To: Brian Beckham <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Sure Brian. People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US. My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction. Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try? Hope that clarifies my question. Thanks! Jon On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> wrote: Hi Jon, Could you explain/unpack that a little bit. Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard. Or are you referring to the standard of review for appeals cases? Sorry for a perhaps basic question, and thanks! Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? <~WRD000.jpg> On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08mar18-en.pdf[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_gdpr-2Dcompliance-2Dinterim-2Dmodel-2D08mar18-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=kTHgi36Qi8MgQE8e_1fYLzYqUSmGl-_6mvivqB0ogDI&e=>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <image001.jpg> JOHN C. 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Hi all, Just a quick opinion I can extend later. 1) I oposse to the proposal. I think we have a mandate by the council to finish URS for the new gTLDs round. 2) URS shares a lot of things with UDRP, but as mechanisms they have to be analyzed separately, even if we want to apply one finding to the other that I analogy has to be reviewed. 3) UDRP will take a long time of work and consensus, research,etc. Letting the URS as it is for that long with no review sounds too much. 4) We are not that far from ending URS compared to the actual times of the new rounds. 5) about the new one and only neutral chair, I also oppose to the proposal, the amount of work in the UDRP needa more than one hand, and in any case, chair have to be neutral, regardless of their personal position. By having three or more chairs they can share workload and achieve a natural balance on the chairing neutrality. We are not in the case where chairs take turn to impose their views. 6)the talks in PR on the new PDP process (3.0) and how to improve it, like changes in how we chart working groups, is something to debate for future PDPs, and despite the changes we do to improve our work, is important to understand that difference. What the council was talking about is a general debate on PDPs, using actual one to scope ideas, but not to change them from one day to another. Cheers, Martín Silva GNSO Councilor On Wed, Apr 18, 2018, 12:41 PM Corwin, Philip via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:
Thanks for the excellent summary/explanation, Mary.
Speaking personally, I would hope and expect that if the WG reaches consensus on any recommend changes to the TMCH, Claims Notice, and Sunrise Registrations that we would issue a Final Report at the conclusion of Phase One – noting that it is the WG, not the co-chairs, who will either reach consensus or not. That would permit any such changes to be in place for the next round of new gTLDs.
I did not mention URS in the preceding paragraph because we have an ongoing dialogue on that.
Best, Philip
Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell
*"Luck is the residue of design" -- Branch Rickey*
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *claudio di gangi *Sent:* Tuesday, April 17, 2018 2:53 PM *To:* Mary Wong <mary.wong@icann.org> *Cc:* gnso-rpm-wg@icann.org *Subject:* [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Mary,
Thank you, very helpful.
I think flexibility is a good thing to have, especially in the fluid environment in which we operate.
Best regards,
Claudio
On Tue, Apr 17, 2018 at 2:30 PM, Mary Wong <mary.wong@icann.org> wrote:
Hello Claudio and everyone,
The staff understanding of the text for those parts of the Charter that you highlighted is that it was intended to provide the Working Group and GNSO Council with as much flexibility as possible, while still staying within the GNSO’s operating rules and the requirements of the PDP Manual.
Basically, having the Charter state expressly that an Initial Report is required at the end of Phase One makes it clear that there must be a specific deliverable and it must be published for public comment. Given, however, that at the outset of a PDP such as this one (i.e. conducted in two phases) the various outcomes or recommendations (if any) that may be agreed on by the Working Group at the end of this Phase One cannot possibly be known, it was considered appropriate to have the language note that *“at a minimum”* (emphasis added) the group’s progress is described, with any preliminary recommendations also reported. For example, it is possible that the Working Group may develop consensus recommendations for new or modified Consensus Policies around any of the Phase One RPMs – this will allow the Working Group to then develop a Final Report (per the PDP Manual) just for these specific Phase One recommendations. Alternatively, the Working Group could reach a point where it believes its work and progress will benefit from either community input on potential (rather than agreed) recommendations, or from GNSO Council guidance as to whether to proceed to work on specific recommendations that may impact work in Phase Two, or both – in this scenario, an Initial Report seeking that type of input may be appropriate, without there being any specific consensus policy recommendations. The Working Group could also decide to recommend postponing implementation of, or revisiting certain, Phase One recommendations pending additional research or work in Phase Two, as another example.
Building in as much flexibility as possible therefore means that multiple potential outcomes are not prematurely curtailed, even before the PDP has kicked off. As phrased, the Charter certainly allows the Working Group to decide, based on the contents of its Initial Report and consequent public comment, that certain policy recommendations are ready for approval by the GNSO Council – in this scenario, the Charter does not preclude the group from then working on a Final Report in accordance with the steps and requirements of the PDP Manual, to be presented to the Council for its vote and action at the end of Phase One.
We hope this helps – please let staff know if there are additional questions or if we can clarify anything further.
Cheers
Mary, Julie, Ariel & Berry
*From: *gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of claudio di gangi <ipcdigangi@gmail.com> *Date: *Tuesday, April 17, 2018 at 12:48 *To: *"gmlevine@researchtheworld.com" <gmlevine@researchtheworld.com> *Cc: *"J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org> *Subject: *Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
All,
Quick question: I recently reviewed the operative text in our Charter (copied below) and it's not clear to me whether our Initial Report, which will be produced at the conclusion of Phase I activity, is intended to include policy recommendations for GNSO Council/Board approval?
The Charter states that a Final Report will be produced at the end of Phase II, which will be sent to the GNSO Council "for its consideration and further action".
However, the same language is not used in the section on the Initial Report, which the Charter states: "shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two."
I also looked at the GNSO's "PDP Manual", and the "WG Guidelines" document, which indicate the Final Report is the mechanism through which policy recommendations are delivered to the Council, see: https://gnso.icann.org/sites/default/files/filefield_48599/annex-2-pdp-manual-16feb16-en.pdf[gnso.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_de...> at page 7.
At your convenience, can the Co-Chairs and/or staff please provide feedback or clarification on this point?
Thanks!
Best regards,
Claudio
---
Deliverables & Timeframes:
In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One
On Mon, Apr 16, 2018 at 12:53 PM, <gmlevine@researchtheworld.com> wrote:
I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database).
Gerald M. Levine
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jon Nevett *Sent:* Monday, April 16, 2018 11:02 AM *To:* Brian Beckham <brian.beckham@wipo.int> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Sure Brian.
People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US.
My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction.
Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try?
Hope that clarifies my question.
Thanks!
Jon
On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int> wrote:
Hi Jon,
Could you explain/unpack that a little bit.
Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard.
Or are you referring to the standard of review for appeals cases?
Sorry for a perhaps basic question, and thanks!
Brian
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Jon Nevett *Sent:* Friday, April 13, 2018 8:43 PM *To:* Nahitchevansky, Georges *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
One alternative is to split the URS review into two parts.
As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later.
Just an idea for a middle ground if folks want one.
Jon
On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
+1 on moving the URS to phase 2. Georges N
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Kurt Pritz *Sent:* Friday, April 13, 2018 2:06 PM *To:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Hi John (and everyone):
Thank you to John for taking the time to put together this cogent document.
I support moving the URS discussion to phase II for the reasons John cited and others.
As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that.
For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs.
The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round.
John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I).
While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision.
I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics).
Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II.
I find the discussion of the chairmanship irrelevant to the discussion also.
Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II.
Best regards,
Kurt
On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg,
It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level:
Clearly the 3 qualities John identified are important basic competencies.
I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient?
I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards.
Kind regards,
Paul.
On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria.
Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled.
Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process.
Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.)
The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land.
Thoughts?
Greg
On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.
I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.
Kind regards,
Paul.
On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
*it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures*
That is quite a precise skill set, did you have someone in mind?
<~WRD000.jpg>
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08... [icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system...>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
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Martin, I could be wrong but I’m not sure I agree on No 4. Having also just looked at the GNSO motion and charter, I also think No 1 is an assumption but not a mandate. (There is moreover still outstanding work on the TMCH-related RPMs and we have yet to actually conclude anything but the PDDRP.) Brian On 18 April 2018 at 18:50:55 CEST, Martin Pablo Silva Valent <mpsilvavalent@gmail.com> wrote: Hi all, Just a quick opinion I can extend later. 1) I oposse to the proposal. I think we have a mandate by the council to finish URS for the new gTLDs round. 2) URS shares a lot of things with UDRP, but as mechanisms they have to be analyzed separately, even if we want to apply one finding to the other that I analogy has to be reviewed. 3) UDRP will take a long time of work and consensus, research,etc. Letting the URS as it is for that long with no review sounds too much. 4) We are not that far from ending URS compared to the actual times of the new rounds. 5) about the new one and only neutral chair, I also oppose to the proposal, the amount of work in the UDRP needa more than one hand, and in any case, chair have to be neutral, regardless of their personal position. By having three or more chairs they can share workload and achieve a natural balance on the chairing neutrality. We are not in the case where chairs take turn to impose their views. 6)the talks in PR on the new PDP process (3.0) and how to improve it, like changes in how we chart working groups, is something to debate for future PDPs, and despite the changes we do to improve our work, is important to understand that difference. What the council was talking about is a general debate on PDPs, using actual one to scope ideas, but not to change them from one day to another. Cheers, Martín Silva GNSO Councilor On Wed, Apr 18, 2018, 12:41 PM Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote: Thanks for the excellent summary/explanation, Mary. Speaking personally, I would hope and expect that if the WG reaches consensus on any recommend changes to the TMCH, Claims Notice, and Sunrise Registrations that we would issue a Final Report at the conclusion of Phase One – noting that it is the WG, not the co-chairs, who will either reach consensus or not. That would permit any such changes to be in place for the next round of new gTLDs. I did not mention URS in the preceding paragraph because we have an ongoing dialogue on that. Best, Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of claudio di gangi Sent: Tuesday, April 17, 2018 2:53 PM 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: [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Mary, Thank you, very helpful. I think flexibility is a good thing to have, especially in the fluid environment in which we operate. Best regards, Claudio On Tue, Apr 17, 2018 at 2:30 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello Claudio and everyone, The staff understanding of the text for those parts of the Charter that you highlighted is that it was intended to provide the Working Group and GNSO Council with as much flexibility as possible, while still staying within the GNSO’s operating rules and the requirements of the PDP Manual. Basically, having the Charter state expressly that an Initial Report is required at the end of Phase One makes it clear that there must be a specific deliverable and it must be published for public comment. Given, however, that at the outset of a PDP such as this one (i.e. conducted in two phases) the various outcomes or recommendations (if any) that may be agreed on by the Working Group at the end of this Phase One cannot possibly be known, it was considered appropriate to have the language note that “at a minimum” (emphasis added) the group’s progress is described, with any preliminary recommendations also reported. For example, it is possible that the Working Group may develop consensus recommendations for new or modified Consensus Policies around any of the Phase One RPMs – this will allow the Working Group to then develop a Final Report (per the PDP Manual) just for these specific Phase One recommendations. Alternatively, the Working Group could reach a point where it believes its work and progress will benefit from either community input on potential (rather than agreed) recommendations, or from GNSO Council guidance as to whether to proceed to work on specific recommendations that may impact work in Phase Two, or both – in this scenario, an Initial Report seeking that type of input may be appropriate, without there being any specific consensus policy recommendations. The Working Group could also decide to recommend postponing implementation of, or revisiting certain, Phase One recommendations pending additional research or work in Phase Two, as another example. Building in as much flexibility as possible therefore means that multiple potential outcomes are not prematurely curtailed, even before the PDP has kicked off. As phrased, the Charter certainly allows the Working Group to decide, based on the contents of its Initial Report and consequent public comment, that certain policy recommendations are ready for approval by the GNSO Council – in this scenario, the Charter does not preclude the group from then working on a Final Report in accordance with the steps and requirements of the PDP Manual, to be presented to the Council for its vote and action at the end of Phase One. We hope this helps – please let staff know if there are additional questions or if we can clarify anything further. Cheers Mary, Julie, Ariel & Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of claudio di gangi <ipcdigangi@gmail.com<mailto:ipcdigangi@gmail.com>> Date: Tuesday, April 17, 2018 at 12:48 To: "gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>" <gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>> Cc: "J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II All, Quick question: I recently reviewed the operative text in our Charter (copied below) and it's not clear to me whether our Initial Report, which will be produced at the conclusion of Phase I activity, is intended to include policy recommendations for GNSO Council/Board approval? The Charter states that a Final Report will be produced at the end of Phase II, which will be sent to the GNSO Council "for its consideration and further action". However, the same language is not used in the section on the Initial Report, which the Charter states: "shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two." I also looked at the GNSO's "PDP Manual", and the "WG Guidelines" document, which indicate the Final Report is the mechanism through which policy recommendations are delivered to the Council, see: https://gnso.icann.org/sites/default/files/filefield_48599/annex-2-pdp-manual-16feb16-en.pdf[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_default_files_filefield-5F48599_annex-2D2-2Dpdp-2Dmanual-2D16feb16-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=RnOXmJJVjZsnSKXyvZTAOuZgVHiLar6a61gljWbBFTM&e=> at page 7. At your convenience, can the Co-Chairs and/or staff please provide feedback or clarification on this point? Thanks! Best regards, Claudio --- Deliverables & Timeframes: In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One On Mon, Apr 16, 2018 at 12:53 PM, <gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>> wrote: I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database). Gerald M. Levine From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jon Nevett Sent: Monday, April 16, 2018 11:02 AM To: Brian Beckham <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Sure Brian. People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US. My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction. Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try? Hope that clarifies my question. Thanks! Jon On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> wrote: Hi Jon, Could you explain/unpack that a little bit. Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard. Or are you referring to the standard of review for appeals cases? Sorry for a perhaps basic question, and thanks! Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? <~WRD000.jpg> On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08mar18-en.pdf[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_gdpr-2Dcompliance-2Dinterim-2Dmodel-2D08mar18-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=kTHgi36Qi8MgQE8e_1fYLzYqUSmGl-_6mvivqB0ogDI&e=>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. 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I have been giving this proposal a lot of thought since John first raised it at ICANN 61, and have been interested in his formal written proposal and the subsequent thoughtful comments from George, Kurt, Jon and others. Thank you all. Noting that these are my personal views, I have serious concerns with moving URS-review into Phase 2. One question our charter poses is whether any of the new gTLD RPMs should be consensus policies applicable to all gTLDs and what transitional issues would that entail. In my opinion, that thrust of our work needs to treat all new gTLD RPMs holistically in the same effort, with the same thought process, the same rigor etc. – separating these so widely in time will undermine such a consistent approach. Moreover, as our work was designed, new gTLD RPMs are to be considered in Phase One and the legacy RPM in Phase Two. They were segmented that way for a reason, not least allowing new gTLD RPMs to be coordinated with the Sub Pro PDP WG (as our charter recognizes). The URS, as a new gTLD RPM, is a critical consideration for the next round of gTLDs. It needs to be nailed down for that round, and delaying that work until Phase Two creates a significant impediment to being able to start a rational new round of gTLDs. With respect to the impact of GDPR, won’t that affect just about everything? Are we sure, for example, that GDPR won’t impact the Trademark Claims process? Best regards, David David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154 From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Martin Pablo Silva Valent Sent: Wednesday, April 18, 2018 12:51 PM To: Corwin, Philip <pcorwin@verisign.com> Cc: gnso-rpm-wg@icann.org Subject: [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi all, Just a quick opinion I can extend later. 1) I oposse to the proposal. I think we have a mandate by the council to finish URS for the new gTLDs round. 2) URS shares a lot of things with UDRP, but as mechanisms they have to be analyzed separately, even if we want to apply one finding to the other that I analogy has to be reviewed. 3) UDRP will take a long time of work and consensus, research,etc. Letting the URS as it is for that long with no review sounds too much. 4) We are not that far from ending URS compared to the actual times of the new rounds. 5) about the new one and only neutral chair, I also oppose to the proposal, the amount of work in the UDRP needa more than one hand, and in any case, chair have to be neutral, regardless of their personal position. By having three or more chairs they can share workload and achieve a natural balance on the chairing neutrality. We are not in the case where chairs take turn to impose their views. 6)the talks in PR on the new PDP process (3.0) and how to improve it, like changes in how we chart working groups, is something to debate for future PDPs, and despite the changes we do to improve our work, is important to understand that difference. What the council was talking about is a general debate on PDPs, using actual one to scope ideas, but not to change them from one day to another. Cheers, Martín Silva GNSO Councilor On Wed, Apr 18, 2018, 12:41 PM Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote: Thanks for the excellent summary/explanation, Mary. Speaking personally, I would hope and expect that if the WG reaches consensus on any recommend changes to the TMCH, Claims Notice, and Sunrise Registrations that we would issue a Final Report at the conclusion of Phase One – noting that it is the WG, not the co-chairs, who will either reach consensus or not. That would permit any such changes to be in place for the next round of new gTLDs. I did not mention URS in the preceding paragraph because we have an ongoing dialogue on that. Best, Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of claudio di gangi Sent: Tuesday, April 17, 2018 2:53 PM 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: [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Mary, Thank you, very helpful. I think flexibility is a good thing to have, especially in the fluid environment in which we operate. Best regards, Claudio On Tue, Apr 17, 2018 at 2:30 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello Claudio and everyone, The staff understanding of the text for those parts of the Charter that you highlighted is that it was intended to provide the Working Group and GNSO Council with as much flexibility as possible, while still staying within the GNSO’s operating rules and the requirements of the PDP Manual. Basically, having the Charter state expressly that an Initial Report is required at the end of Phase One makes it clear that there must be a specific deliverable and it must be published for public comment. Given, however, that at the outset of a PDP such as this one (i.e. conducted in two phases) the various outcomes or recommendations (if any) that may be agreed on by the Working Group at the end of this Phase One cannot possibly be known, it was considered appropriate to have the language note that “at a minimum” (emphasis added) the group’s progress is described, with any preliminary recommendations also reported. For example, it is possible that the Working Group may develop consensus recommendations for new or modified Consensus Policies around any of the Phase One RPMs – this will allow the Working Group to then develop a Final Report (per the PDP Manual) just for these specific Phase One recommendations. Alternatively, the Working Group could reach a point where it believes its work and progress will benefit from either community input on potential (rather than agreed) recommendations, or from GNSO Council guidance as to whether to proceed to work on specific recommendations that may impact work in Phase Two, or both – in this scenario, an Initial Report seeking that type of input may be appropriate, without there being any specific consensus policy recommendations. The Working Group could also decide to recommend postponing implementation of, or revisiting certain, Phase One recommendations pending additional research or work in Phase Two, as another example. Building in as much flexibility as possible therefore means that multiple potential outcomes are not prematurely curtailed, even before the PDP has kicked off. As phrased, the Charter certainly allows the Working Group to decide, based on the contents of its Initial Report and consequent public comment, that certain policy recommendations are ready for approval by the GNSO Council – in this scenario, the Charter does not preclude the group from then working on a Final Report in accordance with the steps and requirements of the PDP Manual, to be presented to the Council for its vote and action at the end of Phase One. We hope this helps – please let staff know if there are additional questions or if we can clarify anything further. Cheers Mary, Julie, Ariel & Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of claudio di gangi <ipcdigangi@gmail.com<mailto:ipcdigangi@gmail.com>> Date: Tuesday, April 17, 2018 at 12:48 To: "gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>" <gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>> Cc: "J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II All, Quick question: I recently reviewed the operative text in our Charter (copied below) and it's not clear to me whether our Initial Report, which will be produced at the conclusion of Phase I activity, is intended to include policy recommendations for GNSO Council/Board approval? The Charter states that a Final Report will be produced at the end of Phase II, which will be sent to the GNSO Council "for its consideration and further action". However, the same language is not used in the section on the Initial Report, which the Charter states: "shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two." I also looked at the GNSO's "PDP Manual", and the "WG Guidelines" document, which indicate the Final Report is the mechanism through which policy recommendations are delivered to the Council, see: https://gnso.icann.org/sites/default/files/filefield_48599/annex-2-pdp-manual-16feb16-en.pdf[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_default_files_filefield-5F48599_annex-2D2-2Dpdp-2Dmanual-2D16feb16-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=RnOXmJJVjZsnSKXyvZTAOuZgVHiLar6a61gljWbBFTM&e=> at page 7. At your convenience, can the Co-Chairs and/or staff please provide feedback or clarification on this point? Thanks! Best regards, Claudio --- Deliverables & Timeframes: In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One On Mon, Apr 16, 2018 at 12:53 PM, <gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>> wrote: I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database). Gerald M. Levine From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jon Nevett Sent: Monday, April 16, 2018 11:02 AM To: Brian Beckham <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Sure Brian. People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US. My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction. Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try? Hope that clarifies my question. Thanks! Jon On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> wrote: Hi Jon, Could you explain/unpack that a little bit. Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard. Or are you referring to the standard of review for appeals cases? Sorry for a perhaps basic question, and thanks! Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? <~WRD000.jpg> On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08mar18-en.pdf[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_gdpr-2Dcompliance-2Dinterim-2Dmodel-2D08mar18-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=kTHgi36Qi8MgQE8e_1fYLzYqUSmGl-_6mvivqB0ogDI&e=>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <image001.jpg> JOHN C. 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David, With respect to the relationship of the URS to the Next round, I actually do not share your view. You state: “The URS, as a new gTLD RPM, is a critical consideration for the next round of gTLDs. It needs to be nailed down for that round, and delaying that work until Phase Two creates a significant impediment to being able to start a rational new round of gTLDs.” This is something that leadership of both PDPs have been discussing for a while now and we do not believe that the URS has an impact on the new gTLD Program since everything pretty much occurs outside of the registry/registrar process. With the exception of a registry having to lock down names and ultimately having to point to an IP address and allowing a registrar to renew a name for an additional year (in the case the complainant wins), there is no other impact. It does not materially impact the costs of running a registry, will not impact a registry’s business case, etc. Nor does it impact the relevant phases of the new gTLD Program that SubPro is focusing on (namely, pre-application period, the application period, evaluation, contracting, delegation, etc.). I see this very different than Sunrise, Trademark Claims, the TMCH, etc. as those can have a significant impact on business cases and can very well play a role in a registry’s decision in whether or not to apply for a particular string. The process for the URS, like the UDRP, I do not believe will (or should) play into the decision for a TLD applicant to move forward or not. Although this is my personal opinion, this has been discussed with the leadership of both PDPs as well as with the GNSO Council. Thanks Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of McAuley, David via gnso-rpm-wg Sent: Friday, April 20, 2018 8:51 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II I have been giving this proposal a lot of thought since John first raised it at ICANN 61, and have been interested in his formal written proposal and the subsequent thoughtful comments from George, Kurt, Jon and others. Thank you all. Noting that these are my personal views, I have serious concerns with moving URS-review into Phase 2. One question our charter poses is whether any of the new gTLD RPMs should be consensus policies applicable to all gTLDs and what transitional issues would that entail. In my opinion, that thrust of our work needs to treat all new gTLD RPMs holistically in the same effort, with the same thought process, the same rigor etc. – separating these so widely in time will undermine such a consistent approach. Moreover, as our work was designed, new gTLD RPMs are to be considered in Phase One and the legacy RPM in Phase Two. They were segmented that way for a reason, not least allowing new gTLD RPMs to be coordinated with the Sub Pro PDP WG (as our charter recognizes). The URS, as a new gTLD RPM, is a critical consideration for the next round of gTLDs. It needs to be nailed down for that round, and delaying that work until Phase Two creates a significant impediment to being able to start a rational new round of gTLDs. With respect to the impact of GDPR, won’t that affect just about everything? Are we sure, for example, that GDPR won’t impact the Trademark Claims process? Best regards, David David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154 From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Martin Pablo Silva Valent Sent: Wednesday, April 18, 2018 12:51 PM To: Corwin, Philip <pcorwin@verisign.com<mailto:pcorwin@verisign.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi all, Just a quick opinion I can extend later. 1) I oposse to the proposal. I think we have a mandate by the council to finish URS for the new gTLDs round. 2) URS shares a lot of things with UDRP, but as mechanisms they have to be analyzed separately, even if we want to apply one finding to the other that I analogy has to be reviewed. 3) UDRP will take a long time of work and consensus, research,etc. Letting the URS as it is for that long with no review sounds too much. 4) We are not that far from ending URS compared to the actual times of the new rounds. 5) about the new one and only neutral chair, I also oppose to the proposal, the amount of work in the UDRP needa more than one hand, and in any case, chair have to be neutral, regardless of their personal position. By having three or more chairs they can share workload and achieve a natural balance on the chairing neutrality. We are not in the case where chairs take turn to impose their views. 6)the talks in PR on the new PDP process (3.0) and how to improve it, like changes in how we chart working groups, is something to debate for future PDPs, and despite the changes we do to improve our work, is important to understand that difference. What the council was talking about is a general debate on PDPs, using actual one to scope ideas, but not to change them from one day to another. Cheers, Martín Silva GNSO Councilor On Wed, Apr 18, 2018, 12:41 PM Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote: Thanks for the excellent summary/explanation, Mary. Speaking personally, I would hope and expect that if the WG reaches consensus on any recommend changes to the TMCH, Claims Notice, and Sunrise Registrations that we would issue a Final Report at the conclusion of Phase One – noting that it is the WG, not the co-chairs, who will either reach consensus or not. That would permit any such changes to be in place for the next round of new gTLDs. I did not mention URS in the preceding paragraph because we have an ongoing dialogue on that. Best, Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of claudio di gangi Sent: Tuesday, April 17, 2018 2:53 PM 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: [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Mary, Thank you, very helpful. I think flexibility is a good thing to have, especially in the fluid environment in which we operate. Best regards, Claudio On Tue, Apr 17, 2018 at 2:30 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello Claudio and everyone, The staff understanding of the text for those parts of the Charter that you highlighted is that it was intended to provide the Working Group and GNSO Council with as much flexibility as possible, while still staying within the GNSO’s operating rules and the requirements of the PDP Manual. Basically, having the Charter state expressly that an Initial Report is required at the end of Phase One makes it clear that there must be a specific deliverable and it must be published for public comment. Given, however, that at the outset of a PDP such as this one (i.e. conducted in two phases) the various outcomes or recommendations (if any) that may be agreed on by the Working Group at the end of this Phase One cannot possibly be known, it was considered appropriate to have the language note that “at a minimum” (emphasis added) the group’s progress is described, with any preliminary recommendations also reported. For example, it is possible that the Working Group may develop consensus recommendations for new or modified Consensus Policies around any of the Phase One RPMs – this will allow the Working Group to then develop a Final Report (per the PDP Manual) just for these specific Phase One recommendations. Alternatively, the Working Group could reach a point where it believes its work and progress will benefit from either community input on potential (rather than agreed) recommendations, or from GNSO Council guidance as to whether to proceed to work on specific recommendations that may impact work in Phase Two, or both – in this scenario, an Initial Report seeking that type of input may be appropriate, without there being any specific consensus policy recommendations. The Working Group could also decide to recommend postponing implementation of, or revisiting certain, Phase One recommendations pending additional research or work in Phase Two, as another example. Building in as much flexibility as possible therefore means that multiple potential outcomes are not prematurely curtailed, even before the PDP has kicked off. As phrased, the Charter certainly allows the Working Group to decide, based on the contents of its Initial Report and consequent public comment, that certain policy recommendations are ready for approval by the GNSO Council – in this scenario, the Charter does not preclude the group from then working on a Final Report in accordance with the steps and requirements of the PDP Manual, to be presented to the Council for its vote and action at the end of Phase One. We hope this helps – please let staff know if there are additional questions or if we can clarify anything further. Cheers Mary, Julie, Ariel & Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of claudio di gangi <ipcdigangi@gmail.com<mailto:ipcdigangi@gmail.com>> Date: Tuesday, April 17, 2018 at 12:48 To: "gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>" <gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>> Cc: "J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II All, Quick question: I recently reviewed the operative text in our Charter (copied below) and it's not clear to me whether our Initial Report, which will be produced at the conclusion of Phase I activity, is intended to include policy recommendations for GNSO Council/Board approval? The Charter states that a Final Report will be produced at the end of Phase II, which will be sent to the GNSO Council "for its consideration and further action". However, the same language is not used in the section on the Initial Report, which the Charter states: "shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two." I also looked at the GNSO's "PDP Manual", and the "WG Guidelines" document, which indicate the Final Report is the mechanism through which policy recommendations are delivered to the Council, see: https://gnso.icann.org/sites/default/files/filefield_48599/annex-2-pdp-manual-16feb16-en.pdf[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_default_files_filefield-5F48599_annex-2D2-2Dpdp-2Dmanual-2D16feb16-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=RnOXmJJVjZsnSKXyvZTAOuZgVHiLar6a61gljWbBFTM&e=> at page 7. At your convenience, can the Co-Chairs and/or staff please provide feedback or clarification on this point? Thanks! Best regards, Claudio --- Deliverables & Timeframes: In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One On Mon, Apr 16, 2018 at 12:53 PM, <gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>> wrote: I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database). Gerald M. Levine From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jon Nevett Sent: Monday, April 16, 2018 11:02 AM To: Brian Beckham <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Sure Brian. People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US. My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction. Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try? Hope that clarifies my question. Thanks! Jon On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> wrote: Hi Jon, Could you explain/unpack that a little bit. Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard. Or are you referring to the standard of review for appeals cases? Sorry for a perhaps basic question, and thanks! Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? <~WRD000.jpg> On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08mar18-en.pdf[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_gdpr-2Dcompliance-2Dinterim-2Dmodel-2D08mar18-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=kTHgi36Qi8MgQE8e_1fYLzYqUSmGl-_6mvivqB0ogDI&e=>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <image001.jpg> JOHN C. 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Thanks for the technical expertise, Jeff. Although I would find it gratifying, after 2 years of work, to knock out a report on all the new RPMs, I find the current GDPR work a fatal impediment to completing the review of URS & UDRP separately. Work on the Providers sub-team has convinced me that the URS and UDRP share similar mechanisms & processes (for example: RPM provider reporting, the hiring/training/monitoring of examiners, notification of parties to RPM proceedings, etc.) most easily addressed together. As well, many of these mechanisms & processes will be similarly impacted by the GDPR. I think it makes sense at this point to address the URS & UDRP together, especially as the moving parts of the GDRP eventually fall into place. Cyntia King E: cking@modernip O: +1 81-ModernIP C: +1 818.209.6088 From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jeff Neuman Sent: Friday, April 20, 2018 11:07 AM To: McAuley, David <dmcauley@verisign.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II David, With respect to the relationship of the URS to the Next round, I actually do not share your view. You state: “The URS, as a new gTLD RPM, is a critical consideration for the next round of gTLDs. It needs to be nailed down for that round, and delaying that work until Phase Two creates a significant impediment to being able to start a rational new round of gTLDs.” This is something that leadership of both PDPs have been discussing for a while now and we do not believe that the URS has an impact on the new gTLD Program since everything pretty much occurs outside of the registry/registrar process. With the exception of a registry having to lock down names and ultimately having to point to an IP address and allowing a registrar to renew a name for an additional year (in the case the complainant wins), there is no other impact. It does not materially impact the costs of running a registry, will not impact a registry’s business case, etc. Nor does it impact the relevant phases of the new gTLD Program that SubPro is focusing on (namely, pre-application period, the application period, evaluation, contracting, delegation, etc.). I see this very different than Sunrise, Trademark Claims, the TMCH, etc. as those can have a significant impact on business cases and can very well play a role in a registry’s decision in whether or not to apply for a particular string. The process for the URS, like the UDRP, I do not believe will (or should) play into the decision for a TLD applicant to move forward or not. Although this is my personal opinion, this has been discussed with the leadership of both PDPs as well as with the GNSO Council. Thanks Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: <mailto:jeff.neuman@valideus.com> jeff.neuman@valideus.com or <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > On Behalf Of McAuley, David via gnso-rpm-wg Sent: Friday, April 20, 2018 8:51 AM To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II I have been giving this proposal a lot of thought since John first raised it at ICANN 61, and have been interested in his formal written proposal and the subsequent thoughtful comments from George, Kurt, Jon and others. Thank you all. Noting that these are my personal views, I have serious concerns with moving URS-review into Phase 2. One question our charter poses is whether any of the new gTLD RPMs should be consensus policies applicable to all gTLDs and what transitional issues would that entail. In my opinion, that thrust of our work needs to treat all new gTLD RPMs holistically in the same effort, with the same thought process, the same rigor etc. – separating these so widely in time will undermine such a consistent approach. Moreover, as our work was designed, new gTLD RPMs are to be considered in Phase One and the legacy RPM in Phase Two. They were segmented that way for a reason, not least allowing new gTLD RPMs to be coordinated with the Sub Pro PDP WG (as our charter recognizes). The URS, as a new gTLD RPM, is a critical consideration for the next round of gTLDs. It needs to be nailed down for that round, and delaying that work until Phase Two creates a significant impediment to being able to start a rational new round of gTLDs. With respect to the impact of GDPR, won’t that affect just about everything? Are we sure, for example, that GDPR won’t impact the Trademark Claims process? Best regards, David David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154 From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Martin Pablo Silva Valent Sent: Wednesday, April 18, 2018 12:51 PM To: Corwin, Philip <pcorwin@verisign.com <mailto:pcorwin@verisign.com> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi all, Just a quick opinion I can extend later. 1) I oposse to the proposal. I think we have a mandate by the council to finish URS for the new gTLDs round. 2) URS shares a lot of things with UDRP, but as mechanisms they have to be analyzed separately, even if we want to apply one finding to the other that I analogy has to be reviewed. 3) UDRP will take a long time of work and consensus, research,etc. Letting the URS as it is for that long with no review sounds too much. 4) We are not that far from ending URS compared to the actual times of the new rounds. 5) about the new one and only neutral chair, I also oppose to the proposal, the amount of work in the UDRP needa more than one hand, and in any case, chair have to be neutral, regardless of their personal position. By having three or more chairs they can share workload and achieve a natural balance on the chairing neutrality. We are not in the case where chairs take turn to impose their views. 6)the talks in PR on the new PDP process (3.0) and how to improve it, like changes in how we chart working groups, is something to debate for future PDPs, and despite the changes we do to improve our work, is important to understand that difference. What the council was talking about is a general debate on PDPs, using actual one to scope ideas, but not to change them from one day to another. Cheers, Martín Silva GNSO Councilor On Wed, Apr 18, 2018, 12:41 PM Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > wrote: Thanks for the excellent summary/explanation, Mary. Speaking personally, I would hope and expect that if the WG reaches consensus on any recommend changes to the TMCH, Claims Notice, and Sunrise Registrations that we would issue a Final Report at the conclusion of Phase One – noting that it is the WG, not the co-chairs, who will either reach consensus or not. That would permit any such changes to be in place for the next round of new gTLDs. I did not mention URS in the preceding paragraph because we have an ongoing dialogue on that. Best, Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> ] On Behalf Of claudio di gangi Sent: Tuesday, April 17, 2018 2:53 PM 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: [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Mary, Thank you, very helpful. I think flexibility is a good thing to have, especially in the fluid environment in which we operate. Best regards, Claudio On Tue, Apr 17, 2018 at 2:30 PM, Mary Wong <mary.wong@icann.org <mailto:mary.wong@icann.org> > wrote: Hello Claudio and everyone, The staff understanding of the text for those parts of the Charter that you highlighted is that it was intended to provide the Working Group and GNSO Council with as much flexibility as possible, while still staying within the GNSO’s operating rules and the requirements of the PDP Manual. Basically, having the Charter state expressly that an Initial Report is required at the end of Phase One makes it clear that there must be a specific deliverable and it must be published for public comment. Given, however, that at the outset of a PDP such as this one (i.e. conducted in two phases) the various outcomes or recommendations (if any) that may be agreed on by the Working Group at the end of this Phase One cannot possibly be known, it was considered appropriate to have the language note that “at a minimum” (emphasis added) the group’s progress is described, with any preliminary recommendations also reported. For example, it is possible that the Working Group may develop consensus recommendations for new or modified Consensus Policies around any of the Phase One RPMs – this will allow the Working Group to then develop a Final Report (per the PDP Manual) just for these specific Phase One recommendations. Alternatively, the Working Group could reach a point where it believes its work and progress will benefit from either community input on potential (rather than agreed) recommendations, or from GNSO Council guidance as to whether to proceed to work on specific recommendations that may impact work in Phase Two, or both – in this scenario, an Initial Report seeking that type of input may be appropriate, without there being any specific consensus policy recommendations. The Working Group could also decide to recommend postponing implementation of, or revisiting certain, Phase One recommendations pending additional research or work in Phase Two, as another example. Building in as much flexibility as possible therefore means that multiple potential outcomes are not prematurely curtailed, even before the PDP has kicked off. As phrased, the Charter certainly allows the Working Group to decide, based on the contents of its Initial Report and consequent public comment, that certain policy recommendations are ready for approval by the GNSO Council – in this scenario, the Charter does not preclude the group from then working on a Final Report in accordance with the steps and requirements of the PDP Manual, to be presented to the Council for its vote and action at the end of Phase One. We hope this helps – please let staff know if there are additional questions or if we can clarify anything further. Cheers Mary, Julie, Ariel & Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > on behalf of claudio di gangi <ipcdigangi@gmail.com <mailto:ipcdigangi@gmail.com> > Date: Tuesday, April 17, 2018 at 12:48 To: "gmlevine@researchtheworld.com <mailto:gmlevine@researchtheworld.com> " <gmlevine@researchtheworld.com <mailto:gmlevine@researchtheworld.com> > Cc: "J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II All, Quick question: I recently reviewed the operative text in our Charter (copied below) and it's not clear to me whether our Initial Report, which will be produced at the conclusion of Phase I activity, is intended to include policy recommendations for GNSO Council/Board approval? The Charter states that a Final Report will be produced at the end of Phase II, which will be sent to the GNSO Council "for its consideration and further action". However, the same language is not used in the section on the Initial Report, which the Charter states: "shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two." I also looked at the GNSO's "PDP Manual", and the "WG Guidelines" document, which indicate the Final Report is the mechanism through which policy recommendations are delivered to the Council, see: https://gnso.icann.org/sites/default/files/filefield_48599/annex-2-pdp-manual-16feb16-en.pdf[gnso.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_de...> at page 7. At your convenience, can the Co-Chairs and/or staff please provide feedback or clarification on this point? Thanks! Best regards, Claudio --- Deliverables & Timeframes: In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One On Mon, Apr 16, 2018 at 12:53 PM, <gmlevine@researchtheworld.com <mailto:gmlevine@researchtheworld.com> > wrote: I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database). Gerald M. Levine From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > On Behalf Of Jon Nevett Sent: Monday, April 16, 2018 11:02 AM To: Brian Beckham <brian.beckham@wipo.int <mailto:brian.beckham@wipo.int> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Sure Brian. People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US. My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction. Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try? Hope that clarifies my question. Thanks! Jon On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int <mailto:brian.beckham@wipo.int> > wrote: Hi Jon, Could you explain/unpack that a little bit. Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard. Or are you referring to the standard of review for appeals cases? Sorry for a perhaps basic question, and thanks! Brian From: gnso-rpm-wg [ <mailto:gnso-rpm-wg-bounces@icann.org> mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [ <mailto:gnso-rpm-wg-bounces@icann.org> mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield < <mailto:gpmgroup@gmail.com> gpmgroup@gmail.com> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. >From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield < <mailto:gpmgroup@gmail.com> gpmgroup@gmail.com> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield < <mailto:gpmgroup@gmail.com> gpmgroup@gmail.com> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? <~WRD000.jpg> On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < <mailto:john.mcelwaine@nelsonmullins.com> john.mcelwaine@nelsonmullins.com> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system...> https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08mar18-en.pdf[icann.org]. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <image001.jpg> JOHN C. 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David, Thinking through the Trademark Claims process, I do not see any significant change or impediment arising from the loss of Whois access. In contrast, as John McElwaine stated at the beginning of this, there are serious impediments to the URS process. Greg On Fri, Apr 20, 2018 at 1:44 PM Cyntia King <cking@modernip.com> wrote:
Thanks for the technical expertise, Jeff.
Although I would find it gratifying, after 2 years of work, to knock out a report on all the new RPMs, I find the current GDPR work a fatal impediment to completing the review of URS & UDRP separately.
Work on the Providers sub-team has convinced me that the URS and UDRP share similar mechanisms & processes (for example: RPM provider reporting, the hiring/training/monitoring of examiners, notification of parties to RPM proceedings, etc.) most easily addressed together. As well, many of these mechanisms & processes will be similarly impacted by the GDPR.
I think it makes sense at this point to address the URS & UDRP together, especially as the moving parts of the GDRP eventually fall into place.
*Cyntia King*
E: cking@modernip
O: +1 81-ModernIP
C: +1 818.209.6088
[image: MIP Composite (Email)]
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jeff Neuman *Sent:* Friday, April 20, 2018 11:07 AM *To:* McAuley, David <dmcauley@verisign.com>; gnso-rpm-wg@icann.org
*Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
David,
With respect to the relationship of the URS to the Next round, I actually do not share your view.
You state: “The URS, as a new gTLD RPM, is a critical consideration for the next round of gTLDs. It needs to be nailed down for that round, and delaying that work until Phase Two creates a significant impediment to being able to start a rational new round of gTLDs.”
This is something that leadership of both PDPs have been discussing for a while now and we do not believe that the URS has an impact on the new gTLD Program since everything pretty much occurs outside of the registry/registrar process. With the exception of a registry having to lock down names and ultimately having to point to an IP address and allowing a registrar to renew a name for an additional year (in the case the complainant wins), there is no other impact. It does not materially impact the costs of running a registry, will not impact a registry’s business case, etc. Nor does it impact the relevant phases of the new gTLD Program that SubPro is focusing on (namely, pre-application period, the application period, evaluation, contracting, delegation, etc.).
I see this very different than Sunrise, Trademark Claims, the TMCH, etc. as those can have a significant impact on business cases and can very well play a role in a registry’s decision in whether or not to apply for a particular string. The process for the URS, like the UDRP, I do not believe will (or should) play into the decision for a TLD applicant to move forward or not.
Although this is my personal opinion, this has been discussed with the leadership of both PDPs as well as with the GNSO Council.
Thanks
*Jeffrey J. Neuman*
*Senior Vice President *|*Valideus USA* | *Com Laude USA*
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: *jeff.neuman@valideus.com <jeff.neuman@valideus.com>* or *jeff.neuman@comlaude.com <jeff.neuman@comlaude.com>*
T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *McAuley, David via gnso-rpm-wg *Sent:* Friday, April 20, 2018 8:51 AM *To:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
I have been giving this proposal a lot of thought since John first raised it at ICANN 61, and have been interested in his formal written proposal and the subsequent thoughtful comments from George, Kurt, Jon and others. Thank you all.
Noting that these are my personal views, I have serious concerns with moving URS-review into Phase 2.
One question our charter poses is whether any of the new gTLD RPMs should be consensus policies applicable to all gTLDs and what transitional issues would that entail. In my opinion, that thrust of our work needs to treat all new gTLD RPMs holistically in the same effort, with the same thought process, the same rigor etc. – separating these so widely in time will undermine such a consistent approach.
Moreover, as our work was designed, new gTLD RPMs are to be considered in Phase One and the legacy RPM in Phase Two. They were segmented that way for a reason, not least allowing new gTLD RPMs to be coordinated with the Sub Pro PDP WG (as our charter recognizes). The URS, as a new gTLD RPM, is a critical consideration for the next round of gTLDs. It needs to be nailed down for that round, and delaying that work until Phase Two creates a significant impediment to being able to start a rational new round of gTLDs.
With respect to the impact of GDPR, won’t that affect just about everything? Are we sure, for example, that GDPR won’t impact the Trademark Claims process?
Best regards,
David
David McAuley
Sr International Policy & Business Development Manager
Verisign Inc.
703-948-4154
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Martin Pablo Silva Valent *Sent:* Wednesday, April 18, 2018 12:51 PM *To:* Corwin, Philip <pcorwin@verisign.com> *Cc:* gnso-rpm-wg@icann.org *Subject:* [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Hi all,
Just a quick opinion I can extend later.
1) I oposse to the proposal. I think we have a mandate by the council to finish URS for the new gTLDs round.
2) URS shares a lot of things with UDRP, but as mechanisms they have to be analyzed separately, even if we want to apply one finding to the other that I analogy has to be reviewed.
3) UDRP will take a long time of work and consensus, research,etc. Letting the URS as it is for that long with no review sounds too much.
4) We are not that far from ending URS compared to the actual times of the new rounds.
5) about the new one and only neutral chair, I also oppose to the proposal, the amount of work in the UDRP needa more than one hand, and in any case, chair have to be neutral, regardless of their personal position. By having three or more chairs they can share workload and achieve a natural balance on the chairing neutrality. We are not in the case where chairs take turn to impose their views.
6)the talks in PR on the new PDP process (3.0) and how to improve it, like changes in how we chart working groups, is something to debate for future PDPs, and despite the changes we do to improve our work, is important to understand that difference. What the council was talking about is a general debate on PDPs, using actual one to scope ideas, but not to change them from one day to another.
Cheers,
Martín Silva
GNSO Councilor
On Wed, Apr 18, 2018, 12:41 PM Corwin, Philip via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:
Thanks for the excellent summary/explanation, Mary.
Speaking personally, I would hope and expect that if the WG reaches consensus on any recommend changes to the TMCH, Claims Notice, and Sunrise Registrations that we would issue a Final Report at the conclusion of Phase One – noting that it is the WG, not the co-chairs, who will either reach consensus or not. That would permit any such changes to be in place for the next round of new gTLDs.
I did not mention URS in the preceding paragraph because we have an ongoing dialogue on that.
Best, Philip
Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell
*"Luck is the residue of design" -- Branch Rickey*
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *claudio di gangi *Sent:* Tuesday, April 17, 2018 2:53 PM *To:* Mary Wong <mary.wong@icann.org> *Cc:* gnso-rpm-wg@icann.org *Subject:* [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Mary,
Thank you, very helpful.
I think flexibility is a good thing to have, especially in the fluid environment in which we operate.
Best regards,
Claudio
On Tue, Apr 17, 2018 at 2:30 PM, Mary Wong <mary.wong@icann.org> wrote:
Hello Claudio and everyone,
The staff understanding of the text for those parts of the Charter that you highlighted is that it was intended to provide the Working Group and GNSO Council with as much flexibility as possible, while still staying within the GNSO’s operating rules and the requirements of the PDP Manual.
Basically, having the Charter state expressly that an Initial Report is required at the end of Phase One makes it clear that there must be a specific deliverable and it must be published for public comment. Given, however, that at the outset of a PDP such as this one (i.e. conducted in two phases) the various outcomes or recommendations (if any) that may be agreed on by the Working Group at the end of this Phase One cannot possibly be known, it was considered appropriate to have the language note that *“at a minimum”* (emphasis added) the group’s progress is described, with any preliminary recommendations also reported. For example, it is possible that the Working Group may develop consensus recommendations for new or modified Consensus Policies around any of the Phase One RPMs – this will allow the Working Group to then develop a Final Report (per the PDP Manual) just for these specific Phase One recommendations. Alternatively, the Working Group could reach a point where it believes its work and progress will benefit from either community input on potential (rather than agreed) recommendations, or from GNSO Council guidance as to whether to proceed to work on specific recommendations that may impact work in Phase Two, or both – in this scenario, an Initial Report seeking that type of input may be appropriate, without there being any specific consensus policy recommendations. The Working Group could also decide to recommend postponing implementation of, or revisiting certain, Phase One recommendations pending additional research or work in Phase Two, as another example.
Building in as much flexibility as possible therefore means that multiple potential outcomes are not prematurely curtailed, even before the PDP has kicked off. As phrased, the Charter certainly allows the Working Group to decide, based on the contents of its Initial Report and consequent public comment, that certain policy recommendations are ready for approval by the GNSO Council – in this scenario, the Charter does not preclude the group from then working on a Final Report in accordance with the steps and requirements of the PDP Manual, to be presented to the Council for its vote and action at the end of Phase One.
We hope this helps – please let staff know if there are additional questions or if we can clarify anything further.
Cheers
Mary, Julie, Ariel & Berry
*From: *gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of claudio di gangi <ipcdigangi@gmail.com> *Date: *Tuesday, April 17, 2018 at 12:48 *To: *"gmlevine@researchtheworld.com" <gmlevine@researchtheworld.com> *Cc: *"J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org> *Subject: *Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
All,
Quick question: I recently reviewed the operative text in our Charter (copied below) and it's not clear to me whether our Initial Report, which will be produced at the conclusion of Phase I activity, is intended to include policy recommendations for GNSO Council/Board approval?
The Charter states that a Final Report will be produced at the end of Phase II, which will be sent to the GNSO Council "for its consideration and further action".
However, the same language is not used in the section on the Initial Report, which the Charter states: "shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two."
I also looked at the GNSO's "PDP Manual", and the "WG Guidelines" document, which indicate the Final Report is the mechanism through which policy recommendations are delivered to the Council, see: https://gnso.icann.org/sites/default/files/filefield_48599/annex-2-pdp-manual-16feb16-en.pdf[gnso.icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_de...> at page 7.
At your convenience, can the Co-Chairs and/or staff please provide feedback or clarification on this point?
Thanks!
Best regards,
Claudio
---
Deliverables & Timeframes:
In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One
On Mon, Apr 16, 2018 at 12:53 PM, <gmlevine@researchtheworld.com> wrote:
I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database).
Gerald M. Levine
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jon Nevett *Sent:* Monday, April 16, 2018 11:02 AM *To:* Brian Beckham <brian.beckham@wipo.int> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Sure Brian.
People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US.
My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction.
Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try?
Hope that clarifies my question.
Thanks!
Jon
On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int> wrote:
Hi Jon,
Could you explain/unpack that a little bit.
Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard.
Or are you referring to the standard of review for appeals cases?
Sorry for a perhaps basic question, and thanks!
Brian
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Jon Nevett *Sent:* Friday, April 13, 2018 8:43 PM *To:* Nahitchevansky, Georges *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
One alternative is to split the URS review into two parts.
As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later.
Just an idea for a middle ground if folks want one.
Jon
On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
+1 on moving the URS to phase 2. Georges N
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Kurt Pritz *Sent:* Friday, April 13, 2018 2:06 PM *To:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Hi John (and everyone):
Thank you to John for taking the time to put together this cogent document.
I support moving the URS discussion to phase II for the reasons John cited and others.
As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that.
For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs.
The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round.
John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I).
While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision.
I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics).
Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II.
I find the discussion of the chairmanship irrelevant to the discussion also.
Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II.
Best regards,
Kurt
On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg,
It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level:
Clearly the 3 qualities John identified are important basic competencies.
I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient?
I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards.
Kind regards,
Paul.
On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria.
Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled.
Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process.
Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.)
The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land.
Thoughts?
Greg
On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.
I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.
Kind regards,
Paul.
On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
*it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures*
That is quite a precise skill set, did you have someone in mind?
<~WRD000.jpg>
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08... [icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system...>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
*<image001.jpg>*
*JOHN C. MCELWAINE **PARTNER*
<john.mcelwaine@nelsonmullins.com>
On reflection, I am opposed to the proposal. I agree with the reservations that have been expressed. From my perspective, the hard questions aren't going to get easier over time and may well get harder if we attempt to answer them in tandem with evaluating the UDRP. My RAs have completed the URS case review and have very useful data to share. We as subteams have gathered a lot of other information as well. Letting all that decay seems to me inefficient and unhelpful to the ultimate project. Separately, I'm concerned about moving from the co-chair model--it seems that our co-chairs have enough work to do for three people. Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of McAuley, David via gnso-rpm-wg <gnso-rpm-wg@icann.org> Sent: Friday, April 20, 2018 8:50:50 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II I have been giving this proposal a lot of thought since John first raised it at ICANN 61, and have been interested in his formal written proposal and the subsequent thoughtful comments from George, Kurt, Jon and others. Thank you all. Noting that these are my personal views, I have serious concerns with moving URS-review into Phase 2. One question our charter poses is whether any of the new gTLD RPMs should be consensus policies applicable to all gTLDs and what transitional issues would that entail. In my opinion, that thrust of our work needs to treat all new gTLD RPMs holistically in the same effort, with the same thought process, the same rigor etc. – separating these so widely in time will undermine such a consistent approach. Moreover, as our work was designed, new gTLD RPMs are to be considered in Phase One and the legacy RPM in Phase Two. They were segmented that way for a reason, not least allowing new gTLD RPMs to be coordinated with the Sub Pro PDP WG (as our charter recognizes). The URS, as a new gTLD RPM, is a critical consideration for the next round of gTLDs. It needs to be nailed down for that round, and delaying that work until Phase Two creates a significant impediment to being able to start a rational new round of gTLDs. With respect to the impact of GDPR, won’t that affect just about everything? Are we sure, for example, that GDPR won’t impact the Trademark Claims process? Best regards, David David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154 From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Martin Pablo Silva Valent Sent: Wednesday, April 18, 2018 12:51 PM To: Corwin, Philip <pcorwin@verisign.com> Cc: gnso-rpm-wg@icann.org Subject: [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi all, Just a quick opinion I can extend later. 1) I oposse to the proposal. I think we have a mandate by the council to finish URS for the new gTLDs round. 2) URS shares a lot of things with UDRP, but as mechanisms they have to be analyzed separately, even if we want to apply one finding to the other that I analogy has to be reviewed. 3) UDRP will take a long time of work and consensus, research,etc. Letting the URS as it is for that long with no review sounds too much. 4) We are not that far from ending URS compared to the actual times of the new rounds. 5) about the new one and only neutral chair, I also oppose to the proposal, the amount of work in the UDRP needa more than one hand, and in any case, chair have to be neutral, regardless of their personal position. By having three or more chairs they can share workload and achieve a natural balance on the chairing neutrality. We are not in the case where chairs take turn to impose their views. 6)the talks in PR on the new PDP process (3.0) and how to improve it, like changes in how we chart working groups, is something to debate for future PDPs, and despite the changes we do to improve our work, is important to understand that difference. What the council was talking about is a general debate on PDPs, using actual one to scope ideas, but not to change them from one day to another. Cheers, Martín Silva GNSO Councilor On Wed, Apr 18, 2018, 12:41 PM Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote: Thanks for the excellent summary/explanation, Mary. Speaking personally, I would hope and expect that if the WG reaches consensus on any recommend changes to the TMCH, Claims Notice, and Sunrise Registrations that we would issue a Final Report at the conclusion of Phase One – noting that it is the WG, not the co-chairs, who will either reach consensus or not. That would permit any such changes to be in place for the next round of new gTLDs. I did not mention URS in the preceding paragraph because we have an ongoing dialogue on that. Best, Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of claudio di gangi Sent: Tuesday, April 17, 2018 2:53 PM 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: [EXTERNAL] Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Mary, Thank you, very helpful. I think flexibility is a good thing to have, especially in the fluid environment in which we operate. Best regards, Claudio On Tue, Apr 17, 2018 at 2:30 PM, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> wrote: Hello Claudio and everyone, The staff understanding of the text for those parts of the Charter that you highlighted is that it was intended to provide the Working Group and GNSO Council with as much flexibility as possible, while still staying within the GNSO’s operating rules and the requirements of the PDP Manual. Basically, having the Charter state expressly that an Initial Report is required at the end of Phase One makes it clear that there must be a specific deliverable and it must be published for public comment. Given, however, that at the outset of a PDP such as this one (i.e. conducted in two phases) the various outcomes or recommendations (if any) that may be agreed on by the Working Group at the end of this Phase One cannot possibly be known, it was considered appropriate to have the language note that “at a minimum” (emphasis added) the group’s progress is described, with any preliminary recommendations also reported. For example, it is possible that the Working Group may develop consensus recommendations for new or modified Consensus Policies around any of the Phase One RPMs – this will allow the Working Group to then develop a Final Report (per the PDP Manual) just for these specific Phase One recommendations. Alternatively, the Working Group could reach a point where it believes its work and progress will benefit from either community input on potential (rather than agreed) recommendations, or from GNSO Council guidance as to whether to proceed to work on specific recommendations that may impact work in Phase Two, or both – in this scenario, an Initial Report seeking that type of input may be appropriate, without there being any specific consensus policy recommendations. The Working Group could also decide to recommend postponing implementation of, or revisiting certain, Phase One recommendations pending additional research or work in Phase Two, as another example. Building in as much flexibility as possible therefore means that multiple potential outcomes are not prematurely curtailed, even before the PDP has kicked off. As phrased, the Charter certainly allows the Working Group to decide, based on the contents of its Initial Report and consequent public comment, that certain policy recommendations are ready for approval by the GNSO Council – in this scenario, the Charter does not preclude the group from then working on a Final Report in accordance with the steps and requirements of the PDP Manual, to be presented to the Council for its vote and action at the end of Phase One. We hope this helps – please let staff know if there are additional questions or if we can clarify anything further. Cheers Mary, Julie, Ariel & Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of claudio di gangi <ipcdigangi@gmail.com<mailto:ipcdigangi@gmail.com>> Date: Tuesday, April 17, 2018 at 12:48 To: "gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>" <gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>> Cc: "J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II All, Quick question: I recently reviewed the operative text in our Charter (copied below) and it's not clear to me whether our Initial Report, which will be produced at the conclusion of Phase I activity, is intended to include policy recommendations for GNSO Council/Board approval? The Charter states that a Final Report will be produced at the end of Phase II, which will be sent to the GNSO Council "for its consideration and further action". However, the same language is not used in the section on the Initial Report, which the Charter states: "shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two." I also looked at the GNSO's "PDP Manual", and the "WG Guidelines" document, which indicate the Final Report is the mechanism through which policy recommendations are delivered to the Council, see: https://gnso.icann.org/sites/default/files/filefield_48599/annex-2-pdp-manual-16feb16-en.pdf[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_default_files_filefield-5F48599_annex-2D2-2Dpdp-2Dmanual-2D16feb16-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=RnOXmJJVjZsnSKXyvZTAOuZgVHiLar6a61gljWbBFTM&e=> at page 7. At your convenience, can the Co-Chairs and/or staff please provide feedback or clarification on this point? Thanks! Best regards, Claudio --- Deliverables & Timeframes: In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One On Mon, Apr 16, 2018 at 12:53 PM, <gmlevine@researchtheworld.com<mailto:gmlevine@researchtheworld.com>> wrote: I agree with Jon to the extent that “[i]f there are issues with the functioning of the current URS that we could dix now, why not try?” The number of URS complaints has been going down from the high in 2016 (Forum database). So far in 2018, I see only 5 decisions (4 suspended, 1 denied) (Forum database). Gerald M. Levine From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jon Nevett Sent: Monday, April 16, 2018 11:02 AM To: Brian Beckham <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Sure Brian. People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US. My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction. Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try? Hope that clarifies my question. Thanks! Jon On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> wrote: Hi Jon, Could you explain/unpack that a little bit. Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard. Or are you referring to the standard of review for appeals cases? Sorry for a perhaps basic question, and thanks! Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? <~WRD000.jpg> On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08mar18-en.pdf[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_gdpr-2Dcompliance-2Dinterim-2Dmodel-2D08mar18-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bOnsvokUfQPwBI3HtclCjiE-bJGMYN9TR_SvqGIcd6Y&s=kTHgi36Qi8MgQE8e_1fYLzYqUSmGl-_6mvivqB0ogDI&e=>. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <image001.jpg> JOHN C. 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Thanks Jon for the clarification. I have tended to use "substantive criteria" rather than "standard of review" so that explains my confusion. Our experience when we looked at a similar process/substance distinction in the UDRP back in 2010/2011, was that a number of process issues could well have substantive implications. If the WG agrees to take this route, perhaps some of the work done by the URS subteams to date can help tease out which issues may fall uniquely into the process bucket? Brian ________________________________ From: Jon Nevett <jon@donuts.email> Sent: Monday, April 16, 2018 5:01 PM To: BECKHAM, Brian Cc: Nahitchevansky, Georges; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Sure Brian. People use the terms differently, so understand the confusion. When we drafted the URS recommendation in the IRT and the STI, we used the same "standard" as the UDRP. In other words, the elements that a complainant needs to prove to win at a URS are the exact same as with a UDRP (i.e. bad faith registration, etc.). The difference between the two systems is the "burden of proof" -- how confident the panelist is in the complainant's evidence. In the US, the burden of proof for criminal cases is beyond a reasonable doubt, but only more likely than not (51%) in most civil cases. A clear and convincing burden used by the URS is in between. We wanted the URS to be used for slam dunk cases, but didn't want the burden as high as a criminal case in the US. My question below was whether it was worth trying to find a middle ground on the URS review by leaving the substance of the URS standard (and even the burden of proof) to the UDRP review, but continue the work on the procedural issues folks have raised that would improve the URS functioning today. So maybe a substance vs. process distinction. Please recall that this RPM WG covers more than the next round of TLDs. If there are issues with the functioning of the current URS that we could fix now, why not try? Hope that clarifies my question. Thanks! Jon On Apr 16, 2018, at 7:49 AM, BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> wrote: Hi Jon, Could you explain/unpack that a little bit. Some folks might see “standard of review” and “burden of proof” as somewhat synonymous, in which case as you rightly point out the URS applies a “clear and convincing” standard but the UDRP applies a “balance of probabilities” (sometimes called “on balance”) standard. Or are you referring to the standard of review for appeals cases? Sorry for a perhaps basic question, and thanks! Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Friday, April 13, 2018 8:43 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II One alternative is to split the URS review into two parts. As most know, the standard of review of a URS claim is exactly the same as a UDRP claim. The burden of proof, however, is higher, as URS was supposed to be for "slam dunk" cases -- hence the the clear and convincing burden. We could wait on reviewing the URS standard of review and everything that goes with that, as that work will mirror the work that will need to be completed during the UDRP review. We could continue to review the facets of the URS that differ from the UDRP now and push the rest to later. Just an idea for a middle ground if folks want one. Jon On Apr 13, 2018, at 2:25 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? <~WRD000.jpg> On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <image001.jpg> JOHN C. 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Georges and Kurt: I concur in the result. John has done a great job identifying the key points to move URS to Phase II. Kurt’s analysis supports this move, as well as putting other comments in perspective as unpersuasive, and in my view I would add, at times more prejudicial than probative. Best regards, Scott Please click below to use my booking calendar to schedule: a 15-minute call<calendly.com/saustin-2/15min> a 30-minute call<calendly.com/saustin-2/30min> a 60-minute call<calendly.com/saustin-2/60min> [cid:image001.png@01D3D341.12233AB0][IntellectualPropertyLaw 100] [microbadge[1]] <http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com> From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Nahitchevansky, Georges Sent: Friday, April 13, 2018 2:26 PM To: Kurt Pritz <kurt@kjpritz.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? [https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gif] On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. [http://www.nelsonmullins.com/img/ecard-logo.png] JOHN C. 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All, I also support the proposal and think it's a great way of proceeding. The URS and UDRP are very similar, complementary policies, both designed to address abusively registered domains in gTLDs. As a result, almost every topic or issue that requires research and analysis applies to both RPMs. Therefore, reviewing these policies in unison will create efficiencies and streamline our work. In fact, I believe there are interdependencies in terms of how the policies are designed and function. These factors will need to be taken into consideration when developing our WG report, including for example, the scope and nature of the remedies available under each policy. Reviewing them in unison will avoid the need to go back and revise and/or change our recommendations based on subsequent decisions or information that is uncovered. All things considered, it appears to be the most logical way of approaching the review, with very little to no downside that is readily apparent to me. Thanks for the suggestion John. Best regards, Claudio On Fri, Apr 13, 2018 at 4:08 PM Scott Austin <SAustin@vlplawgroup.com> wrote:
Georges and Kurt:
I concur in the result. John has done a great job identifying the key points to move URS to Phase II. Kurt’s analysis supports this move, as well as putting other comments in perspective as unpersuasive, and in my view I would add, at times more prejudicial than probative.
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*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Nahitchevansky, Georges *Sent:* Friday, April 13, 2018 2:26 PM *To:* Kurt Pritz <kurt@kjpritz.com>; gnso-rpm-wg@icann.org
*Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
+1 on moving the URS to phase 2. Georges N
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Kurt Pritz *Sent:* Friday, April 13, 2018 2:06 PM *To:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II
Hi John (and everyone):
Thank you to John for taking the time to put together this cogent document.
I support moving the URS discussion to phase II for the reasons John cited and others.
As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that.
For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs.
The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round.
John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I).
While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision.
I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics).
Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II.
I find the discussion of the chairmanship irrelevant to the discussion also.
Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II.
Best regards,
Kurt
On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg,
It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level:
Clearly the 3 qualities John identified are important basic competencies.
I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient?
I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards.
Kind regards,
Paul.
On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria.
Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled.
Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process.
Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.)
The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land.
Thoughts?
Greg
On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com> wrote:
Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.
I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.
Kind regards,
Paul.
On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Paul,
I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that?
Greg
On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
*it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures*
That is quite a precise skill set, did you have someone in mind?
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
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***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
In case I neglected to send my response last week: I support the proposal. MRG From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of claudio di gangi Sent: Friday, April 13, 2018 3:35 PM To: Scott Austin <SAustin@vlplawgroup.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II All, I also support the proposal and think it's a great way of proceeding. The URS and UDRP are very similar, complementary policies, both designed to address abusively registered domains in gTLDs. As a result, almost every topic or issue that requires research and analysis applies to both RPMs. Therefore, reviewing these policies in unison will create efficiencies and streamline our work. In fact, I believe there are interdependencies in terms of how the policies are designed and function. These factors will need to be taken into consideration when developing our WG report, including for example, the scope and nature of the remedies available under each policy. Reviewing them in unison will avoid the need to go back and revise and/or change our recommendations based on subsequent decisions or information that is uncovered. All things considered, it appears to be the most logical way of approaching the review, with very little to no downside that is readily apparent to me. Thanks for the suggestion John. Best regards, Claudio On Fri, Apr 13, 2018 at 4:08 PM Scott Austin <SAustin@vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> wrote: Georges and Kurt: I concur in the result. John has done a great job identifying the key points to move URS to Phase II. Kurt’s analysis supports this move, as well as putting other comments in perspective as unpersuasive, and in my view I would add, at times more prejudicial than probative. Best regards, Scott Please click below to use my booking calendar to schedule: a 15-minute call<http://calendly.com/saustin-2/15min> a 30-minute call<http://calendly.com/saustin-2/30min> a 60-minute call<http://calendly.com/saustin-2/60min> [cid:image001.png@01D3D341.12233AB0][IntellectualPropertyLaw 100] [microbadge[1]] <http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com> From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Nahitchevansky, Georges Sent: Friday, April 13, 2018 2:26 PM To: Kurt Pritz <kurt@kjpritz.com<mailto:kurt@kjpritz.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II +1 on moving the URS to phase 2. Georges N From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Friday, April 13, 2018 2:06 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II Hi John (and everyone): Thank you to John for taking the time to put together this cogent document. I support moving the URS discussion to phase II for the reasons John cited and others. As John, and others (in an earlier email string) have pointed out, the results of GDRP could affect the URS discussion. The next round of new gTLDs should not be held hostage to that. For me, I see no reason why the URS discussion was ever on the critical path to the next round of new gTLDs. The findings of this working group will not affect the analysis of a potential gTLD applicant regarding whether to apply or setting up operations. Nor will it affect the evaluation of applications. If registries receive a URS decision, they will implement it. They have no role in setting the criteria or requirements for URS decision making. Therefore, there is no reason to put this discussion on the critical path to the next round. John’s paper alludes to this when he says that URS is a lot more like UDRP (which is in Phase II) than TMCH & Claims (which is in Phase I). While this phase I / phase II timing decision might not have seemed to be a critical decision at the outset, GDRP developments and the length of time taken so far has made it a critical decision. I find George’s reasoning unpersuasive. He cites section 5 of John’s paper, which is essentially background information — dicta with regard to he matter at hand. All of the questions in section 5 can be taken up by this working group regardless of the timing and none of the questions need be on the critical path to the next round for the reason stated above (i.e., the new gTLD applicant or operator is not affected by the outcome of these discussion topics). Similarly, I don’t think George’s discussion regarding fpast meeting frequency is relevant to whether to move the URS to phase II. I find the discussion of the chairmanship irrelevant to the discussion also. Thanks again to John for doing this work, I support his conclusion that the URS discussion should be moved to phase II. Best regards, Kurt On Apr 13, 2018, at 9:12 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, It’s always important to try and be precise in what you say. I think it would have been helpful for John to clarify his proposal as he has not done so, on a more general level: Clearly the 3 qualities John identified are important basic competencies. I agree one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. The question is how can this be achieved more often than not and will the 3 qualities John identified be sufficient? I would suggest character traits high in openness and agreeableness are probably as important if not more important. If these could be combined with humility, a moral compass and intellect this may help avoid working group member fatigue and in the worst case all the time consuming curative work necessary to address a situation where someone has fallen below the required standards. Kind regards, Paul. On Mon, Apr 9, 2018 at 4:02 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, Perhaps John can clarify what he meant by these criteria. I think they make perfect sense and seem like common sense. As I read them, they are fairly common criteria for good ICANN GNSO Working Group chairs and nothing surprising. By your reaction, I suspect you are reading them differently, especially since you think that these create a heightened potential to shape process in an unwelcome way (I say “heightened” only because any chair has some potential to process in a way that is unwelcome to some). That may be the source of our different views on these criteria. Appropriate neutrality = Someone who is able to act neutral as expected of Working Group chairs, as if they had no interest in any particular outcome. Not someone who is in fact neutral (i.e., not a stakeholder at all, or a stakeholder in a community that truly has no preference as to outcome); this latter type would be relatively rare. I think one of the highest compliments one can give a WG chair is that you had no sense of where they stood on any of the issues the group handled. Experience in PDP consensus-building = Ideally, a former chair, vice-chair, subgroup chair, rapporteur or other leader/facilitator in a GNSO PDP WG, who has already had the experience of trying to aid the WG (or subgroup) to come to consensus. Less ideally, an experienced GNSO WG PDP participant, who has been through some number of consensus building processes and is ready to step into the chair role in that process. Experience in parliamentary procedure = Someone with experience with and a good understanding of the rules and procedures governing the process of GNSO PDP WG meetings. Not someone who has specific experience with Robert’s Rules of Order and its non-US equivalents, not someone who is a member of an actual Parliament, and not someone who is a “parliamentarian” (which could mean a member of parliament or someone who advises a chair on rules of procedure). This may be the one that is tripping you up. This is probably the most susceptible to misunderstanding, since we don’t use the term “parliamentary procedure” that often in ICANN-land in any sense (and our meetings do not run by Robert’s, etc.) The bigger picture I get is of a steady and experienced hand who can stay above the fray in terms of issues and positions, who can actively work with the group to identify and fashion consensus, and someone who has very good understanding of and facility with our rules of procedure so that they can run the meetings well and make them as efficient and effective as possible, while ensuring that all positions are heard. From a procedural side, this sounds completely sensible and not that uncommon in ICANN-land. Thoughts? Greg On Mon, Apr 9, 2018 at 6:02 AM Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way. I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind. Kind regards, Paul. On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Paul, I'm not sure why you say this is precise. Is there one criterion in particular that caused you to say that? Greg On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures That is quite a precise skill set, did you have someone in mind? [https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gif] On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com>> wrote: Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined: “In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.” 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product. 4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08.... Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. [http://www.nelsonmullins.com/img/ecard-logo.png] JOHN C. 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I am opposed to the proposal. I think that it's one thing to look back in hindsight and posit that our charter could have been more clearly structured, but I'm not at all convinced that going back to the GNSO council at this point would result in a more efficient process, as I don't agree that this is at the root of our challenges in having "polarized" the working group. I am also doubtful as to whether a single chair would improve things - as I anticipate they'd end up overwhelmed. On Thu, Apr 5, 2018 at 10:54 PM, John McElwaine < john.mcelwaine@nelsonmullins.com> wrote:
Dear RPM Working Group:
In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.
Kind regards,
John
Proposal to Shift URS from Phase I to Phase II:
1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.
2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time:
The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.”
3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.
4. The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly defined:
“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”
5. However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”. This list contains topics that are out of scope when compared with the Objectives and Goals, including:
1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window
2. Should monetary damages be awarded?
3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
4. Should injunctive relief be available?
5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?
6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:
1. Define clearly what success for the proposed working group ”should look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).
2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4).
3. Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).
4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5).
5. Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.” (S. DelBianco reporting on breakout session, Transcript at p. 5).
7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.
8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by:
1. Procedure for UDRP/URS:
1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.
2. Possibility that the Language of the URS proceeding cannot be determined.
2. Procedure for URS:
1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.
2. Possibility that URS complainants cannot know the language of a possible response.
3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.
3. UDRP Element 2 / URS:
1. Cannot argue that the registrant is not commonly known by the Domain Name at issue.
2. Cannot determine if the registrant has been authorized by the Trademark holder.
3. Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.
4. Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed.
4. UDRP Element 3:
1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii).
2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.
3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).
4. Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii).
9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance- interim-model-08mar18-en.pdf. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.
Recommendation:
1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.
2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:
1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;
2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;
3. provide clear guidance on the scope of the review of the URS and UDRP.
Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.
*[image: http://www.nelsonmullins.com/img/ecard-logo.png]*
*JOHN C. MCELWAINE **PARTNER*
*john.mcelwaine@nelsonmullins.com <john.mcelwaine@nelsonmullins.com> *
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participants (22)
-
BECKHAM, Brian -
claudio di gangi -
Corwin, Philip -
Cyntia King -
George Kirikos -
gmlevine＠researchtheworld.com -
Greg Shatan -
Jeff Neuman -
John McElwaine -
Jon Nevett -
Jonathan Frost -
Kurt Pritz -
Martin Pablo Silva Valent -
Mary Wong -
McAuley, David -
Michael Graham (ELCA) -
Michael Karanicolas -
Nahitchevansky, Georges -
Paul Tattersfield -
Scott Austin -
Susan Payne -
Tushnet, Rebecca