1. Rights Protection Mechanisms. Registry Operator shall implement and adhere to the rights protection mechanisms (“RPMs”) specified in this Specification. [and shall not restrict the ability of Trademark Holders to use the Sunrise Period (each as defined in the Trademark Clearinghouse Requirements) in contravention with the intent of such RPMs]. In addition to such RPMs, Registry Operator may develop and implement additional RPMs that discourage or prevent registration of domain names that violate or abuse another party’s legal rights. Registry Operator will include all RPMs required by this Specification 7 and any additional RPMs developed and implemented by Registry Operator in the Registry-Registrar Agreement entered into by ICANN accredited registrars authorized to register names in the TLD. Registry Operator shall implement in accordance with requirements set forth therein each of the mandatory RPMs set forth in the Trademark Clearinghouse as of the date hereof, as posted at https://www.icann.org/en/resources/registries/tmch-requirements (the “Trademark Clearinghouse Requirements”), which may be revised in immaterial respects by ICANN from time to time. Except as permitted by a Qualified Launch Program or an Approved Launch Program, Registry Operator shall not operate the TLD in such a way as to unfairly restrict the ability of Trademark Holders to use the Sunrise or to otherwise circumvent the purposes of the RPMs, which are set forth in paragraphs 1 and 2 of the Trademark Clearinghouse Requirements. Registry Operator shall not mandate that any owner of applicable intellectual property rights use any other trademark information aggregation, notification, or validation service in addition to or instead of the ICANN-designated Trademark Clearinghouse. If there is a conflict between the terms and conditions of this Agreement and the Trademark Clearinghouse Requirements, the terms and conditions of this Agreement shall control. Registry Operator must enter into a binding and enforceable Registry-Registrar Agreement with at least one ICANN accredited  registrar authorizing such registrar(s) to register domain names in the TLD as follows: [Rest of Provision ok]

1)  The text of Sunrise Recommendation #1 and Implementation Guidance in the Final RPM Phase 1 report states:

"Sunrise Final Recommendation #1 The Working Group recommends that the Registry Agreement for future new gTLDs include a provision stating that a Registry Operator shall not operate its TLD in such a way as to have the effect of intentionally circumventing the mandatory RPMs imposed by ICANN or restricting brand owners’ reasonable use of the Sunrise RPM. 

Implementation Guidance:  The Working Group agrees that this recommendation and its implementation are not intended to preclude or restrict a Registry Operator’s legitimate business practices that are otherwise compliant with ICANN policies and procedures." 

Despite it being called a "Sunrise Recommendation", the recommendation states that the RO shall not operate its TLD in such a way to to have the effect of intentionally circumventing the mandatory RPMs....or restricting brand owners' reasonable use of the Sunrise RPM."

2)  ICANN staff has now come back and said we don't know how to implement this recommendation in the way it is worded because we don't know how to measure someone's intent.

3)  In the version ICANN sent out for public comment it eliminated the "intentionally circumventing" language, and said simply that ROs may not restrict a TM owners ability to use the Sunrise.

4)  ICANN's language has at least two problems which were pointed out in the comments the Registries (and Jeff) made and the comments made by the IPC.

      

a)  By removing the intent language, the words "reasonable use of the Sunrise", and ignoring the Implementation Guidance which talks about ROs legitimate business practices, the language creates a conflict between what is allowed in the TMCH documents (Separate from the Contracts).  And all conflicts according to the provision state that the language in the Agreement control (meaning that even is something is allowed in the TMCH documents, if it is not allowed by the language in the agreement, ROs cannot do it.  Therefore, the language in the Agreement would prevent ROs from delegating names through a Qualified Launch Plan prior to Sunrise.  And this could prevent ROs from assigning names like subway.nyc, fire.miami, police.las vegas, beats.hiphop, Zoom.photo, etc. if it had to go through a Sunrise first as all of the terms are ones in which large companies own trademarks.  

This is why we have proposed making it clear that ROs CAN restrict trademark owners from using the Sunrise for these names IF they have been approved for use in a Qualified Launch Plan or an Approved Launch Plan.

b)  Our interpretation of the IPCs main comment is that the RPM Phase 1 recommendation includes all mandatory RPMs and not just Sunrise.  And if you look at the language of the Recommendation, that appears to be true.  The recommendation states ROs may not operate the TLD in a way that has the effect of intentionally circumventing the mandatory RPMs OR restricting brand owners' reasonable use of the Sunrise RPM.

This is why we: (1)  Made it apply to all mandatory RPMs, (2) exempted the QLPs and ALPs (which we believe was the intent for the Implementation Guidance), and added the word "unfairly" (as we believe was also the intent of the Recommendation.