[Gnso-rpm-practitioner] Conference to Address Issue REMINDER FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April
Kathy Kleiman
kathy at kathykleiman.com
Thu May 3 14:48:04 UTC 2018
Hi Jason and All,
I've cc'd the full Practitioners Subteam. Per Jason's request, I think
we have a forum here for discussion. So let's take this off the main
list and resolve it here in the subteam - with Paul Keating now added.
I've talked with Phil, and because the issue may take a day or two to
discuss, our deadline is now cob Sunday.
Best, Kathy
On 5/3/2018 10:05 AM, Corwin, Philip wrote:
> Please do take it off list because it has introduced a divisiveness
> that was absent until now. This is the problem when questions are
> submitted after sub team and WG review deadlines have passed.
>
> Try to reach a solution, but the questions must be final by cob Friday.
>
> Sent from my iPhone
>
> On May 3, 2018, at 9:23 AM, Jason Schaeffer <jason at esqwire.com
> <mailto:jason at esqwire.com>> wrote:
>
>> Hi All:
>>
>> I’m writing to our sub-group volunteers to invite Paul into this
>> group to take the discussion “off line” from the WG and see if we can
>> work together to find a suitable solution to allow us to move forward
>> with our survey.
>>
>> We worked for many weeks to bring this forward to the Sub Team and
>> WG. I’d like to see if we can use the same collaborative effort to
>> see if we can find a manner to improve upon the questions added by
>> Paul and see if there is a path forward that does not raise such
>> extreme objections.
>>
>> Can we discuss over the next two days and see if we can move this
>> forward and present to the WG?
>>
>> Thanks,
>>
>> Jason
>>
>> On May 2, 2018, at 12:42 AM, Scott Austin <SAustin at vlplawgroup.com
>> <mailto:SAustin at vlplawgroup.com>> wrote:
>>
>>> Greg:
>>>
>>> Thank you Greg, I agree as a member of the sub team who worked long
>>> and hard on the survey questions to encourage practitioners to
>>> respond, this 11^th hour add on will have exactly the opposite
>>> effect, by insinuation it reads like a malpractice interrogatory,
>>> addressed to examiners not practitioners, at a minimum chilling
>>> candid response and possibly skewing the results entirely. Should be
>>> deleted from a survey of practitioners.
>>>
>>> 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>
>>>
>>> *<image001.png><image002.jpg> **<image003.jpg>*
>>> <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 at VLPLawGroup.com <mailto:SAustin at VLPLawGroup.com>
>>>
>>> *From:* Gnso-rpm-practitioner
>>> <gnso-rpm-practitioner-bounces at icann.org
>>> <mailto:gnso-rpm-practitioner-bounces at icann.org>> *On Behalf Of
>>> *Greg Shatan
>>> *Sent:* Wednesday, May 2, 2018 12:24 AM
>>> *To:* Corwin, Philip <pcorwin at verisign.com
>>> <mailto:pcorwin at verisign.com>>
>>> *Cc:* gnso-rpm-practitioner at icann.org
>>> <mailto:gnso-rpm-practitioner at icann.org>
>>> *Subject:* Re: [Gnso-rpm-practitioner] REMINDER FOR REVIEW: Final
>>> Draft Questions for Practitioners -- Final due Monday, 30 April
>>>
>>> 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 <mailto: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
>>> <mailto: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
>>> <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
>>> <mailto:julie.hedlund at icann.org>>;
>>> gnso-rpm-practitioner at icann.org
>>> <mailto: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] *On Behalf
>>> Of *Julie Hedlund
>>> *Sent:* Monday, April 30, 2018 9:05 AM
>>> *To:* gnso-rpm-practitioner at icann.org
>>> <mailto: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
>>> <mailto:gnso-rpm-practitioner-bounces at icann.org>> on behalf
>>> of Julie Hedlund <julie.hedlund at icann.org
>>> <mailto:julie.hedlund at icann.org>>
>>> *Date: *Wednesday, April 25, 2018 at 1:56 PM
>>> *To: *"gnso-rpm-practitioner at icann.org
>>> <mailto:gnso-rpm-practitioner at icann.org>"
>>> <gnso-rpm-practitioner at icann.org
>>> <mailto: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
>>> <mailto:gnso-rpm-wg-bounces at icann.org>> on behalf of Julie
>>> Hedlund <julie.hedlund at icann.org
>>> <mailto:julie.hedlund at icann.org>>
>>> *Date: *Wednesday, April 25, 2018 at 1:08 PM
>>> *To: *"gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org>"
>>> <gnso-rpm-wg at icann.org <mailto: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 25April 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.
>>>
>>> _______________________________________________
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>>> <mailto:Gnso-rpm-practitioner at icann.org>
>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-practitioner
>>>
>>>
>>>
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