[Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 23 August 2018

Thu Aug 23 15:22:17 UTC 2018

Dear All,

Please see below the action items and notes captured by staff from the Providers Sub Team call held on 23 August 2018 (12:00-13:30 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 recording. The recording, AC chat, and attendance records are posted on the wiki at: INSERT.  

See also the attached referenced document and the Responses & Notes - URS Provider Questions [docs.google.com].

Best Regards,

Julie

Julie Hedlund, Policy Director

==

ACTION ITEMS: 

ACTION ITEM 1: Staff will update the Super Consolidated URS Table based on the notes from today’s meeting.

ACTION ITEM 2: Re: 7. SMD File -- Sub Team to ask all three Providers to confirm whether their Examiners are able to obtain the jurisdiction information...(page 4): Staff to check the rules to see if the Providers' actions are compliant.  See: URS Rules r.3(b)(v)

ACTION ITEM 3: Re: J. LANGUAGE ISSUES -- Sub Team to ask ADNDRC how their Examiners' language skills are used in the URS proceedings where the Respondents are not English speakers (if any)? And ask ADNDRC how their Examiners handled the situation (if any) where a Respondent did not have the capability of understanding English. (pages 7-8) -and- Sub Team to ask MFSD for a direct response whether they think it would be feasible to mandate sending Registry and Registrar notices in the same languages. (pages 7-8): Staff will check to see what the rules require.

ACTION ITEM 4: Re: L. EDUCATION & TRAINING -- Sub Team to review the Notice of Complaint and Providers' online forms/instructions before considering whether any recommendations should be made...(page 8): Staff will review the forms and bring any issues to the Sub Team.

NOTES:

Discussions of the URS Provider and GDD’s responses to follow-up questions, with the aim to identify issues and propose suggestions for the consideration of the full WG

A. THE COMPLAINT

4. Administrative Review (pages 1 and 2)

Sub Team to ask ADNDRC to explain why they accept Complaints that do not contain all of the elements required in URS Rule 3(b). ( page 1)

Discussion:

-- It seems that ADNDRC's initial response was a misinterpretation of the question.  This is corrected.  

Proposed Suggestion: No action required.

Sub Team to obtain details from ADNDRC and FORUM on their administrative check to determine whether a domain name is already subject to an open and active URS/UDRP proceeding or court case. ( page 2)

Discussion:

-- Domain registrant is best placed to know if there is an action in another forum.  The Providers can't know all instances.  

-- As a best practice should there be a database maintained by ICANN of all URS/UDRP case listed by domain?  But that seems like overkill and would require a lot of work to keep up to date.  Also, there is less than a month before start to finish of the URS.  

-- MFSD uses a check list to determine if a client is compliant with the rules: https://community.icann.org/download/attachments/79436564/MFSD-Check%20List-Post%20GDPR.pdf?version=1&modificationDate=1528731844000&api=v2

Proposed Suggestion: The WG could suggest that the Providers check the websites of the other providers, but it may be that no action is required.

6. Amending the Complaint in light of GDPR/Temp Spec (pages 2-4)

Sub Team to ask ADNDRC and FORUM whether they accept a URS Complaint if the Complainant does not provide the contract details of the Respondent ("Doe Complaint"). (pages 2-3)

Discussion:

-- Complaints are being accepted.  

-- URS is only for new gTLD.  

-- GDD and RySG could develop a uniform system for interaction between the Providers and registries.  

-- Also, there is the FORUM suggestion for a technical redesign of the URS filing process to allow manual amendments of the Complaint.  

Proposed Suggestion: WG to ask ICANN to determine whether operational fixes are required in light of GDD.

Sub Team to follow up with MFSD to request data/evidence that support their claim about the difficulty in filing a "Doe Complaint". (pages 3-4)

Proposed Suggestion: Communicate on this issue with the EPDP WG so they are aware of this issue with European URS Providers re: European civil law systems not recognizing the common law concept of "Doe Complaint", and that the concept is not well understood in Europe.  WG could suggest outreach and education via INTA to make European Providers more aware of the possibility of a Doe Complaint.

7. SMD File

Sub Team to ask all three Providers to confirm whether their Examiners are able to obtain the jurisdiction information...(page 4)

Discussion:

-- We are asking the wrong question.  The SMD file is only for proof of use.  It is not how you find out the details about the trademark/category of goods and services.  

-- If they cannot get this information from the SMD file how are they getting this information?

-- Wouldn't that information be part of the complaint -- filed by the Complainant?  They do have to upload evidence of use.

-- MFSD's practice of verifying that a submitted SMD file has not been revoked is interesting.

-- See p14 of the FORUM doc Colin circulated -- requires TM Cert to be uploaded.

Proposed Suggestion:  ACTION ITEM: Staff to check the rules to see if the Providers' actions are compliant.  See: URS Rules r.3(b)(v) Specify the trademark(s) or service mark(s) on which the complaint is based and the goods and services with which the mark is used including evidence of use -- which can be a declaration and a specimen of current user in commerce -- submitted directly or by including a relevant SMD from the TMCH.

8. Other Topics (pages 4-5)

Sub Team to follow up with MSFD to request data/evidence to support their claim regarding certain factors being possible deterrents to filing a URS Complaint. (pages 4-5)

Proposed Suggestion: No action required.

B. NOTICE

2. Effect on Registry Operator (page 5)

Sub Team to follow up with FORUM and ask why GDPR may make the activation of URS Lock more difficult. (page 5)

Proposed Suggestion: WG could suggest outreach and education via INTA to make European Providers more aware of the possibility of a Doe Complaint.

C. RESPONSE

2. Other issues relating to Reponses (other than issues relating to Defenses), e.g. Default procedures. (page 5)

Sub Team to review FORUM Appendix B and MFSD's Checklist used for the Administrative Review of the Response and consider whether further deliberation is needed. (page 5)

Proposed Suggestion: Staff has reviewed the documents provided by FORUM and MFSD's documents and found that they satisfy the Administrative Review of the Response.  No action required.

E. DEFENSES (page 6)

While the following action items are for the WG, the Providers Sub Team is likely to be asked to provide input...(page 6)

Discussion:

-- The ANDDRC guidelines don't appear to contain any consideration of defenses.  FORUM templates also don't seem to have any consideration of defenses.

-- Seems that these are just forms.

-- Would support a minimum standard that applies across the board.

Proposed Suggestion:

-- WG to further examine the divergent practice and requirements of Providers with regard to Examiners' providing reasoning in support of their Determination.

-- WG to consider whether all providers should give similar types/forms of guidance to their Examiners.

F. REMEDIES

4. Other Topics (pages 6-7)

Sub Team to solicit input from ICANN GDD and Registry Operators with regard to the HSTS-preloaded domain suspension issue and the potential GDPR impact on Providers' ability to check the completion of URS actions by Registry Operators. (pages 6-7)

Proposed Suggestion: No action required.

J. LANGUAGE ISSUES

Sub Team to ask ADNDRC how their Examiners' language skills are used in the URS proceedings where the Respondents are not English speakers (if any)? And ask ADNDRC how their Examiners handled the situation (if any) where a Respondent did not have the capability of understanding English. (pages 7-8)

-and-

Sub Team to ask MFSD for a direct response whether they think it would be feasible to mandate sending Registry and Registrar notices in the same languages. (pages 7-8)

Discussion:

-- Given that ADNDRC's examiners also speak Chinese I don't know why they aren't working in the language that the registration is made.

-- Suggestion could be that the Provider should operate in the language that the registration is made.

-- Does there need to be some sort of auditing to catch this going forward?  Yes, ICANN should check that Providers comply with the rules and procedures.  See: 9. Language of Proceedings The URS Procedure Paragraph 4.2 specifies the languages in which the Notice of Complaint shall be transmitted. (a) The Complaint shall be submitted in English.(b) The Response may be provided in English, or in one of the languages used for the Notice of Complaint.10(c) The Examiner appointed shall be fluent in English and in the language of the Response and will determine in which language to issue its Determination, in its sole discretion.(d) In the absence of a Response, the language of the Determination shall be English.(e) The Provider is not responsible for translating any documents other than the Notice of Complaint.

Procedure 4.2 The Notice of Complaint shall be in English and translated by the Provider into the predominant language used in the Registrant’s country or territory.

Proposed Suggestion: WG should make sure that the registrant is getting a copy of the complaint in the language that they can understand so that they can respond.  If ADNDRC does not translate the complaint then they are not following the rules.  ICANN needs to be made aware that one of their providers is ignoring policy.

ACTION ITEM: Staff will check to see what the rules require.  See: "(b) The Notice of Complaint to the Respondent shall be transmitted in English and shall be translated by the Provider into the predominant language used in the registrant’s country or territory, as determined by the country(ies) listed in the Whois record when the Complaint is filed."

L. EDUCATION & TRAINING (page 8)

Sub Team to review the Notice of Complaint and Providers' online forms/instructions before considering whether any recommendations should be made...(page 8)

Discussion: Staff reviewed the forms and didn't see problems.  Some information is not mandatory in the forms, such as fax numbers.

Proposed Suggestion: Pending information from the staff review. ACTION ITEM: Staff will review the forms and bring any issues to the Sub Team.

M. URS PROVIDERS

1. Evaluation of the URS Providers and their respective processes (pages 9-11)

Sub Team to ask ADNDRC to elaborate on their panel selection processes (pages 9-10)

Discussion:

-- ADNDRC process looks pretty positive.

-- Haven't heard any complaints that anyone who wants to be an examiner is being blocked.

Proposed Suggestion:  No action required.

Sub Team/WG to examine MFSD dispute no. 8422F178 e-leclerc.paris & no. 429EC571 (page 10)

Discussion:

-- This was not a follow up question.  This was an action item to the Sub Team to review these two disputes.

(f) If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules, the URS Procedure or the Provider’s Supplemental Rules, the Examiner shall draw such inferences therefrom as it considers appropriate

-- This is what MFSD said before  " Yes. In Default Determinations Examiners concluded that: "Respondent’s default does not automatically result in a decision in favor of the Complainant. Although, the Examiner may draw appropriate inferences from a Respondent’s default, Paragraph 12 of the URS Rules requires the Examiner to review the Complaint for a prima facie case, including complete and appropriate evidence [...] The Examiner finds that in this case there are no such exceptional circumstances. Consequently, failure on the part of the Respondent to file a response to the Complaint permits an inference that the Complainant’s reasonable allegations are true. It may also permit the Examiner to infer that the Respondent does not deny the facts that the Complainant asserted" (e.g. Dispute no. 8422F178 e-leclerc.paris; Dispute no. 429EC571 reinhausen.international).

-- I think we are just meant to review those cases to make sure we aren't uncomfortable with them

-- Still don't understand what the concern here is. I don't see an issue with Examiner being allowed to draw inferences from a Party's non-compliance to any provision or requirements under the Rules/Procedures

-- I think the issue is to make sure the burden of proof remains firmly on the complainant

-- I think it is just that they gave us some examples of where this had happened so for completeness we should review

Proposed Suggestion: No action required.

Sub Team to ask ADNDRC to provide details in order to understand whether ADNDRC has been out of compliance with technical requirements. (page 10)

Proposed Suggestion:  WG to consider a recommendation that ICANN should check Providers for compliance.

Sub Team to ask ADNDRC to provide details on the information or data that ICANN requested from them via their regular communication. (pages 10-11)

Proposed Suggestion: No action required.

Sub Team to ask all three Providers to provide specific examples of their Examiner training and education programs/materials, to assist the WG to determine whether further deliberation is needed. (page 11)

Proposed Suggestion: No action required.

1. Conflict of Interest (page 11)

Sub Team to ask ADNDRC to confirm whether any of their Examiners voluntarily disclosed any conflict of interest.

Proposed Suggestion: No action required. 

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