[Gnso-rpm-sunrise] Actions & Notes: RPM Sunrise Sub Team Meeting 03 April 1800 UTC

[Julie Hedlund]

Dear All,

Please see below the action items and notes captured by staff from the RPM Sunrise Sub Team meeting held on 03 April 2019 (18:00-19:00 UTC).  Staff have posted to the wiki space the action items and notes.  Please note that these are high-level notes and are not meant as a substitute for the recording, chat room, or transcript. The recording, AC chat, transcript and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2019-04-03+Sub+Team+for+Sunrise+Data+Review.

Best Regards,
Julie
Julie Hedlund, Policy Director

==

NOTES & ACTION ITEMS

Actions:

  1.  Sub Team members should review the questions, beginning with Question 4 (see attached summary table) and suggest preliminary recommendations.
  2.  Sub Team members should review individual proposals: See https://community.icann.org/x/R6EWBg (top half of the table on the wiki page includes the Trademark Claims related individual proposals)
  3.  Staff will draft language for preliminary recommendations for which proposals have been discussed (1, 2, 3, and 7)

Notes:

1.  Updates to Statements of Interest (SOIs):

2.  Development of Preliminary Recommendations – Complete discussion of question 3, begin discussion of remaining questions as time permits -- 4, 5(a) and (b), 6, 8, 9, 10, 11, 12, and Preamble question (questions 1, 7, and 2 have been addressed):

Question 3:

Tentative Preliminary Recommendations (from 27 March 2019 meeting):
1. [George Kirikos] If there's a challenge mechanism, it could be modeled on the Passive Holding doctrine test under the UDRP (with better clarity, as some panelists misinterpret that test).  This would be an Implementation Review Team task.
2. [Griffin Barnett] ICANN should establish a mechanism that allows trademark owners to challenge a determination by a registry operator that a particular domain name is a "Premium Name" or a "Reserved Name".  The mechanism could be a component of an enhanced Sunrise Dispute Resolution Procedure (SDRP), where the challenger brings the issue to the registry first, with the possibility of an appeal to a neutral third party if the initial direct registry interaction does not result in the desired outcome for the challenger. If the challenger ultimately prevails, the registry operator would be required to change the designation of the domain name at issue such that it is no longer identified as a "Premium Name" or a "Reserved Name" and becomes available for registration by the challenger. As part of the proposed challenge mechanism, a defense, or ground for denying the challenge, should be that the registry must continue to designate a certain name as "reserved" to comply with other ICANN policies or applicable law.
3. [Maxim Alzoba] Since all registries are real-time (or almost real-time (there is no requirement to make it strictly real time with reaction in milliseconds, it is not a stock exchange after all), Registries have to use something saying - 'this should not pass registration '(for example Registrar via SSR (interface of the RO - Registry Operator platform) sent command to register a domain... the answer should be - registered /not , almost instantly (with ability to check - why not) or Check command - to understand what is possible to do, in what state the domain is etc.) – so there is no time for offline checks, and all types of exclusions (due to policies of ICANN, SSAC recommendations, prohibitions due to local reasons, like prohibition of the registration, for example due to decision of the local court, or the regulator -all records are in the Reserved list ...) So changing Reserved list, will affect Registries in their ability to run real time platforms (and it is required - via SLA means in RA (registry agreement with ICANN). And the consequences are quite unpredictable  (including security and stability concerns).

Discussion:
-- Agree that there should be a challenge mechanism, but would be nuanced.
-- Can't treat reserved names monolithically, for technical or policy reasons.
-- Agree that carve-outs should be built into the suggested challenge mechanism.
-- Three ways marks could be used: 1) no limitation; 2) dictionary words; 3) dictionary words in context (generic in context).
-- We might need to ensure safeguards.
-- The suggestion for a challenge mechanism in this context -- where a TM owner is encountering a problem registering in the Sunrise period because it is a premium or reserved name -- that there should be some type of mechanism to challenge that designation in the Sunrise period.  The suggestion is not that it is an absolute challenge, but include the legitimate grounds for the premium name designation or reserved name status.
-- For premium names: Should we put aside a dispute resolution mechanism but make a recommend to SubPro for names recorded in the TMCH they can't be designated premium or only at a certain price -- this is a pricing issue.
-- Could have a numeric limit on premium names.

3.  AOB:
1. Co-Chair of the full WG reviewed the timeline and noted that the Sub Team should finalize preliminary recommendations and individual proposals by 15 May.  Need to make decisions on text for preliminary recommendations on each call.
2. Timing of the Calls: Leave at 18:00 UTC.
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