[gnso-rpm-wg] Further Action Items from the Working Group call held on Wednesday 10 August

[Mary Wong]

Dear all,

In addition to the initial list of immediate Action Items that was circulated following the Wednesday call, here are the remaining Action Items for your further discussion and feedback.


(1)     FOLLOW UP WITH ICANN COMPLIANCE

The WG discussed 2 possible questions to be put to Compliance for follow up. WG members are requested to review these and provide your feedback as well as suggest any additional questions:


1.       When community or review work brings to light circumstances which may warrant further investigation, is Compliance empowered to investigate, especially if a formal complaint has not been filed? If yes, have you done so previously?


2.       If Compliance becomes aware of possible problematic activity involving use of TMCH or other RPMs e.g. by registrars or registries (or any other circumstance comes to light which may justify further investigation), do they proceed to investigate in the absence of a formal complaint? If they are empowered to act, have they taken action based on the data/information they have?

Staff Note: WG members may recall that Compliance was asked a specific question previously about whether they had received complaints that they dealt with but that might otherwise fall under the TM-PDDRP though no complaint was filed under that Procedure. Here is their response:
“Compliance has received a minimal number of complaints from trademark holders regarding registry operator’s practices. However, not having received them in the context of a TM-PDDRP complaint, they were not assessed for viability under the Procedure and therefore, it would be speculative to opine whether they could have been covered under the Procedure.”


(2)     ADDITIONAL NOTES ON ISSUES/CONCERNS/SUGGESTIONS DOCUMENT

Online mediation - Staff to add to Summary Document that the online mediation option nevertheless should include the ability to use the "regular" tools that would be used for physical real-time mediation e.g. side meetings and caucuses. Further, in-person mediation should also an option as long as both parties agree.

Collecting information about substantial infringement and bad faith registry practices – consider approaching entities such as INTA, MARQUES, Managing IP for information; staff to gather letters and other documents sent to ICANN previously (e.g. by INTA)

Burden of proof – Suggestion that the status quo should remain as the default unless there is evidence justifying change (per Jeff Neuman: "the status quo with respect to the PDDRP (both substantive and procedural) should be maintained unless there is a good reason to change it.  By good reason I mean that it should be the burden of those requesting a change to show good cause as to why it should be changed.  Good reason should be supported by evidence".) Staff to work with Jeff to compile the documents available, including prior legal analysis by ICANN. WG members to send in additional materials for staff compilation.

WG members are invited to continue discussions via this email list prior to the next WG call. Please also note the action items and deadlines from the initial list sent on Wednesday (see below). Thank you!

Cheers
Mary

From: Mary Wong <mary.wong at icann.org>
Date: Wednesday, August 10, 2016 at 15:49
To: "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
Subject: Action Items (initial list) from the Working Group call held earlier today (Wednesday 10 August)

Dear Working Group Members,

The following is the initial list of Action Items from the call held earlier today. Staff will send the second additional list of Action Items following confirmation of specific suggested language from the call transcript and recording.

Action Item #1:

·         Members who were on the call today approved the proposed set of follow up questions to be sent to the three TM-PDDRP Providers. Members who were not able to be on the call are kindly requested to review the attached questions and send any concerns or objections to this mailing list by Monday 15 August. We hope to send the questions out early next week, with a view to receiving the providers’ input by end-August.

Action Item #2:

·         Members who were on the call today approved the proposed list of questions for the ICANN community survey. Members who were not able to be on the call are kindly requested to review the attached questions and send any concerns or objections to this mailing list by Monday 15 August. We hope to create the survey and send out the link by the end of next week, with a view to receiving responses by Friday 16 September.

Action Item #3:

·         All members are invited to provide their view as to the scope of the mandate of the TMCH Sub Team. As noted on the call today, some Working Group and Sub Team members thought it would be appropriate for the Sub Team to catalogue all existing information and data they consider relevant, to be reported back to the full Working Group – this could include developing appropriate questions to be answered (based on those in the Working Group Charter and additional Working Group/community questions) and requesting materials from third parties (e.g. the TMCH Providers, registrars, others). The information sought could include not just materials that are easily accessible by public search but potentially also information that, while already in existence, will be provided by request. Other Working Group members thought that the Sub Team’s mandate was limited to gathering information and data that was already publicly available and reporting that back to the full Working Group – this would not include the Sub Team contacting third parties who may be able to provide additional data or materials.


·         For further background, please refer to the Sub Team’s initial report on the Working Group wiki space: https://community.icann.org/download/attachments/61605051/TMCH%20Sub%20Team%20Initial%20Report%20-%20Susan%20Payne%20edit%20-%209%20Aug.docx?version=1&modificationDate=1470845690000&api=v2.


·         To join the Sub Team, please contact the GNSO Secretariat at gnso-secs at icann.org<mailto:gnso-secs at icann.org> with your request to be added to the list.

Action Item #4:

·         With thanks to those Members who have already completed the Doodle poll on mediation and burden of proof, Members who have not yet participated in the straw poll are kindly requested to do so by Friday 12 August: http://doodle.com/poll/nc8ydu8cbbywtabm.

As always, the call recording and transcript as well as any follow up documents will be posted to the Working Group wiki space, under the relevant meeting date: https://community.icann.org/x/uwSsAw.

Thanks and cheers
Mary


Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names and Numbers (ICANN)
Email: mary.wong at icann.org
Telephone: +1-603-5744889


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