[Gnso-rpm-practitioner] REMINDER FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April

[Greg Shatan]

I have an issue, which I guess I will have to bring up to the RPM group as
a whole. I had not really focused on the questions tacked on to the very
end.  I don't believe we ever discussed these in the sub-team or the
sub-sub-team.  I believe these questions are inappropriate in a poll of
practitioners, as these are questions directed to "panelists."   (The
proper term is Examiner....) It feels like a "bait and switch" tactic.  If
we are going to survey Examiners, let's survey Examiners -- not ambush
practitioners.  On that basis alone, we should eliminate these questions.

I am also troubled by the questions themselves.  I've reviewed the URS
Procedures and Rules, and none of these questions comes out of a Procedure
or Rule.  The Examiners are supposed to declare conflicts of interest, but
there is no instruction on how to implement that.  As such, there is no
requirement that an Examiner undertake any type of conflicts check much
less something as specific as "a law firm-wide conflicts check to verify
that neither you nor your law firm has any actual or potentially adverse
conflict of interest to the complainant and/or respondent."  Asking the
question implies that this is an imperative when it is not.

On top of that, this verbiage does not accurately describe a conflict
check.  What is a "potentially adverse conflict of interest"? Why is it
only asking about adverse conflicts?  I note that the Forum does have a
Supplementary Rule that "A Examiner will be disqualified if circumstances
exist that create a conflict of interest or cause the Examiner to be unfair
and biased, including but not limited to ...  The Examiner has served as an
attorney to any party or the Examiner has been associated with an attorney
who has represented a party during that association."  This does not ask
the Examiner to run a conflict check, but notably, the issue it raises is
the exact *opposite* of the issue implied in these proposed questions --
the Forum is highlighting representing a party, not being adverse (much
less "potentially adverse) to a party.

Now, I'm not saying it's a bad idea for an Examiner to run a (properly
defined) conflict check, but the very fact that we are debating Examiner
actions and requirements in a practitioners poll should tell us we're in
the wrong place.

For that reason, I will not discuss the problems in the follow-up questions.

The final question is even worse. ("Have you ever communicated with a third
party regarding an ongoing URS dispute in which you were a panelist?')  As
far as I know, this is not prohibited behavior, especially not this broadly
described.  It seems designed to make people feel like they might have done
something wrong.  (If this is expressly prohibited by the Rules or
Procedures, then perhaps we could fashion a question out of that
Rule/Procedure *if we were putting together a poll for Examiners*.)  Is it
improper to "communicate" with your spouse about a URS case?  With one of
your law partners? With a fellow Examiner?

Long story short, these questions should be deleted.

Greg

On Mon, Apr 30, 2018 at 4:06 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> Jason,
>
> Thank you for guiding us through this process.  I think this turned out to
> be a very successful and collaborative sub-team — due in no small part to
> your approach in working with this group.   We had good contributions from
> across the subteam (and the sub-sub-team) as well.
>
> I believe we ended up with fair, well-formed questions that will maximize
> the amount of useful information that results from this process — both in
> terms of the raw data and in terms of analysis and results that will arise
> from working with the data.
>
> Thanks again!
>
> Greg
>
> On Mon, Apr 30, 2018 at 3:09 PM Corwin, Philip via Gnso-rpm-practitioner <
> gnso-rpm-practitioner at icann.org> wrote:
>
>> Well done, and thanks and congratulations to the sub-team members and to
>> all other who helped shape the final questions.
>>
>>
>>
>> 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-practitioner [mailto:gnso-rpm-practitioner-
>> bounces at icann.org] *On Behalf Of *Jason Schaeffer
>> *Sent:* Monday, April 30, 2018 2:44 PM
>> *To:* Julie Hedlund <julie.hedlund at icann.org>;
>> gnso-rpm-practitioner at icann.org
>> *Subject:* [EXTERNAL] Re: [Gnso-rpm-practitioner] REMINDER FOR REVIEW:
>> Final Draft Questions for Practitioners -- Final due Monday, 30 April
>>
>>
>>
>> Hi Julie,
>>
>>
>>
>> Thank you and staff for your ongoing assistance.
>>
>>
>>
>> Having heard no objection and considering the thoughtful debate and input
>> from members to help finalize these questions, I would be comfortable using
>> your latest edit as the final document from our sub-team.
>>
>>
>>
>> Thanks,
>>
>>
>>
>> Jason
>>
>>
>>
>> *From:* Gnso-rpm-practitioner [mailto:gnso-rpm-practitioner-
>> bounces at icann.org <gnso-rpm-practitioner-bounces at icann.org>] *On Behalf
>> Of *Julie Hedlund
>> *Sent:* Monday, April 30, 2018 9:05 AM
>> *To:* gnso-rpm-practitioner at icann.org
>> *Subject:* [Gnso-rpm-practitioner] REMINDER FOR REVIEW: Final Draft
>> Questions for Practitioners -- Final due Monday, 30 April
>> *Importance:* High
>>
>>
>>
>> Dear Jason and Practitioner Sub Team members,
>>
>>
>>
>> Per the message below, please note that any comments from your review of
>> the attached questions are due COB today, 30 April.
>>
>>
>>
>> Best regards,
>>
>> Mary, Ariel, Berry, and Julie
>>
>>
>>
>> *From: *Gnso-rpm-practitioner <gnso-rpm-practitioner-bounces at icann.org>
>> on behalf of Julie Hedlund <julie.hedlund at icann.org>
>> *Date: *Wednesday, April 25, 2018 at 1:56 PM
>> *To: *"gnso-rpm-practitioner at icann.org" <gnso-rpm-practitioner at icann.org>
>> *Subject: *[Gnso-rpm-practitioner] FOR REVIEW: Final Draft Questions for
>> Practitioners -- Final due Monday, 30 April
>>
>>
>>
>> Dear Jason and Practitioner Sub Team members,
>>
>>
>>
>> Per the notes below from today’s RPM WG meeting, the Practitioners Sub
>> Team is requested to review the attached final draft of the questions for
>> practitioners.  This redlined version includes the changes received since
>> last week’s RPM WG call from Scott Austin, Brian Beckham, George
>> Kirikos, Greg Shatan, and David McAuley as of 24 April, which was the
>> deadline for comments.
>>
>>
>>
>> Also included for your review are new questions received from Paul
>> Keating on 25 April.  These new questions are included at the end of the
>> “Other” section on page 8.
>>
>>
>>
>> In your review of the revised questions, please indicate whether there
>> are revisions with which you do not agree, and whether you have comments or
>> edits to suggest.  As noted above, the Sub Team is tasked with agreeing to
>> a final version of the questions by COB on Monday, 30 April, that staff
>> will then turn into a survey to be provided to the list of practitioners
>> previously agreed to by the Sub Team.
>>
>>
>>
>> Please let staff know if you have any questions or need assistance.
>>
>>
>>
>> Best,
>>
>> Mary, Ariel, Berry, and Julie
>>
>>
>>
>> *From: *gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of Julie
>> Hedlund <julie.hedlund at icann.org>
>> *Date: *Wednesday, April 25, 2018 at 1:08 PM
>> *To: *"gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
>> *Subject: *[gnso-rpm-wg] Actions & Notes: RPM PDP WG 25 April 2018
>>
>>
>>
>> Dear All,
>>
>>
>>
>> Please see below the action items and brief notes captured by staff from
>> the Working Group call held on 25 April 2018 (1200 UTC).  Staff have
>> posted to the wiki space the action items and notes.  *Please note that
>> these will be high-level notes and are not meant as a substitute for the
>> transcript or recording.*  The recording, transcript, Adobe Connect
>> chat, and attendance records are posted on the wiki.
>>
>>
>>
>> The referenced document is attached.
>>
>>
>>
>> Best Regards,
>>
>> Julie
>>
>> Julie Hedlund, Policy Director
>>
>>
>>
>> *Action Items:*
>>
>>
>>
>>    1. *Questions for URS Practitioners*:
>>       1. The Sub Team will finalize the questions by Monday, 30 April.
>>       2. Staff will create a survey and send to the Practitioners.
>>    2. *Questions for Providers*:
>>
>>
>>    1. Staff will close the document for review by Friday, 27 April and
>>       send it to the Sub Team for a final review.
>>       2. The Sub Team will complete a review of the questions by COB
>>       Monday, 30 April.
>>       3. Staff will send the questions to the Providers.
>>
>> *Notes:*
>>
>>
>>
>> 1. Questions for URS Practitioners:
>>
>>
>>
>> -- Question 3: Edit from George re: Question three – Reword as two
>> separate questions – filing and response fees.
>>
>> -- The Sub Team will finalize the questions by Monday, 30 April.
>>
>>
>>
>> 2. Questions for URS Providers:
>>
>>
>>
>> -- Responses from most Providers that they can respond in 30 days for
>> most questions, and 45-60 days for questions that require a review of
>> decisions.
>>
>> -- Close the document for review by this Friday, 27 April and then send
>> to the Providers.
>>
>>
>>
>> Review of the Questions:
>>
>>
>>
>> Communications:
>>
>> Question 2 – changes accepted.
>>
>> Question 5 – new question b captures the concern from Brian Beckham, and
>> c addresses George’s concern.
>>
>> Question 6 – changes accepted.
>>
>> Question 7 – changes accepted.
>>
>>
>>
>> Complaints:
>>
>> Question 4 – Correct the grammar; providers may need to consult with
>> examiners.  Question stays as amended.  It can stay in and that we
>> understand the limitations around it.
>>
>>
>>
>> Notice of Complaint and Locking of Domain
>>
>> Question 5: This has been moved to another section, question 2 in
>> Communications: Rule 4(c): "The electronic copy of the Notice of Complaint
>> may be provided via email or an emailed link to an online platform
>> requiring users to create an account." It can be deleted here.  George and
>> Brian have accepted the edits.
>>
>>
>>
>> The Response:
>>
>> Question 1: Providers plan to look at decisions and consult with their
>> examiners and get back to us in 60 days.  Leave the question in.
>>
>> Question 4: Providers plan to look at decisions and consult with their
>> examiners and get back to us in 60 days.  Leave the question in.
>>
>> Question 11: Change to: “Have you received feedback that the Response
>> period is inadequate?”
>>
>> Question 14: Providers plan to look at decisions and consult with their
>> examiners and get back to us in 60 days.  Leave the question in.
>>
>> Question 15: DELETE.  Concerned about the definition of “domain
>> investors”.  It will be quite difficult if not impossible to get this
>> information from providers.  Doesn’t seem much utility in the answers.
>> Also may be able to get some of this information from determination data
>> being gathered by Rebecca.
>>
>>
>>
>> Examiner:
>>
>> Question 12b: No case of an abusive complaint – no entry in the abuse
>> case database – so is this question still necessary?  Leave it in because
>> we want to know if they have a policy.  Revise to include the URDP concept
>> of RDNH.  Rewrite to ask whether the provider has a policy of allowing
>> someone to be an examiner if they also represent complainants.
>>
>> Question 12c: is suggesting that part c of the question isn’t needed
>> since we already have responses from the providers.  But there is a
>> difference between how many examiners are on the roster and how many are
>> actually deciding decisions.  Edit to make this a more targeted question
>> regarding the size of the examiner pool, whether random assignment is used,
>> etc. by COB 25 April.
>>
>> Question 13: Providers would not know the status of their examiners.
>> Examiners may not be willing or able to say either.  Also seems to be
>> suggesting that you can’t represent both respondents and complainants.  Not
>> sure what is the point of the question.  ACTION: Rephrase to focus on panel
>> selection policy to encourage diversity in trademark practice.  Suggestion:
>> “What steps, if any, do you take to ensure that your Examiners have a
>> diversity of relevant experience, e.g. have experience representing
>> respondents as well as complainants?"
>>
>>
>>
>> Language:  Question 4: Providers plan to look at decisions and consult
>> with their examiners and get back to us in 60 days.  Leave the question in.
>>
>>
>>
>> In Person Hearings: DELETE. Question doesn’t make sense.
>>
>>
>>
>> Default:
>>
>> Question 1: Seems to ask providers how they do something for a procedure
>> over which they have no control.  ACTION: Take it back to the Sub Team to
>> consider deleting.
>>
>> Question 2: DELETE. We already have this information from the case review
>> for both within 6 months and after 6 months.
>>
>> Question 3: Providers plan to look at decisions and consult with their
>> examiners and get back to us in 60 days.  Leave the question in
>>
>>
>>
>> Examiner Determination:
>>
>> Question 3: Providers plan to look at decisions and consult with their
>> examiners and get back to us in 60 days.  Leave the question in, but
>> include Brian’s reformulation: “Noting URS Rules 13(a) that Examiners may
>> ‘make a Determination …in accordance with …any rules and principles of law
>> that it deems applicable.’ Are you aware whether any case that the Examiner
>> has invoked this rule?”
>>
>> Question 8: Possibly duplicative.  ACTION: Take it back to the Sub Team
>> to consider deleting, or rephrase it.
>>
>> Question 10: DELETE.  Provider can’t know what the examiner assigns to
>> others in their office.  But could rephrase if they are aware or provide
>> any suggested language or clerical help to examiners.  George will send
>> revised language.
>>
>>
>>
>> Remedies:
>>
>> Question 4: This is seeking an opinion; keep it in.
>>
>> Question 5: DELETE.  Keep it for the WG.
>>
>> Question 6: Leave it in, but add: “If yes, what action did you take on
>> receiving the notice or to resolve the query?”
>>
>>
>>
>> Effect of Court Proceeding.
>>
>> Question 1: Ask David McAuley to send revised language.  Done: “To your
>> knowledge, have there been instances of legal proceedings relating to URS
>> proceedings and, if so, what effect did such instance(s) have?”
>>
>>
>>
>> Others:
>>
>> Question 3: Leave it in, and ask, “If so can you provide the type of
>> information or data requested..”  Also, combine with Question 4.
>>
>> Question 4: See above.  Combine with question 3.
>>
>> Question 6: Policy question.  Unless others have suggestions for
>> rewriting it, the question will be deleted.
>>
>> Question 7: DELETE.  Determined to be out of scope.  Or, we could ask if
>> Providers support sanctions against abusers of the process whether
>> Complainant or Respondent.  Also, could ask all Providers if they clearly
>> disclose potential conflicts?  Or could ask FORUM specifically.  Hold off
>> decision on this call and discuss further, although leave it out of the
>> list of questions for now.
>> _______________________________________________
>> Gnso-rpm-practitioner mailing list
>> Gnso-rpm-practitioner at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-rpm-practitioner
>
>
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