[gnso-rpm-wg] FOR REVIEW/DISCUSSION - NEW co-chairs' statement on additional RPMs, and UPDATED table of TMCH Charter questions

Greg Shatan gregshatanipc at gmail.com
Wed Dec 7 06:21:34 UTC 2016

I found the Co-Chairs' statement somewhat troublesome.  First, I felt that
it advocated for particular outcomes, which both strains the bounds of
chair neutrality and takes a top-down approach inconsistent with bottom-up
development of WG positions (which is given a brief mention at the very end
of the letter, but only after the advocacy has played out).  It might have
been preferable to present the questions without the answers and allowed
the WG to develop its position, rather than laying out a position that
essentially becomes a default position.

That said, I have some sympathy for the idea the group should take notice
of the private RPMs in trying to review, analyze and potentially modify the
ICANN-created RPMs -- even if I don't think that position should have been
spoon-fed to the WG.

I have significantly more trouble with two paragraphs in the letter, which
go beyond taking notice of the private RPMs, to asserting WG jurisdiction
over the private RPMs.  I don't buy the argument that these are within the
scope of this group; re-reading the Charter just confirmed my view. This is
an aggressive attempt at "bootstrapping" from the remit of this group to
reach into areas well out of scope.

The first of these paragraphs is:

The WG inquiry may also consider whether, and to what extent, additional
protective services should be consistent with either policy decisions
reflected in the shaping of the ICANN-required RPMs (noting that it may
have always been contemplated that such RPMs could constitute a “floor” and
not an overall limitation on additional market-provided protections) or
with the recognized scope of trademark law. For example, should a rights
holder be able to block the registration of unlimited variations of its
registered mark, and should one trademark owner be able to block the
registration of a mark that another has equivalent rights to for separate
classes of goods and services?

To the contrary, the WG has no authority to opine on or to create policy
for private RPMs -- unless the Charter is significantly amended (which I
can't see supporting).  The second troublesome paragraph is:

The Co-Chairs also wish to better understand the process, if any, by which
registry operators gain approval for the offering of such additional RPMs.
Section 2.1 of the standard new gTLD registry agreement permits a registry
operator to offer Registry Service that is an Approved Service, but
requires it to request approval under the Registry Services Evaluation
Policy (RSEP) if it wishes to offer any service that is not an Approved
Service or is a material modification of an Approved Services. It is
important for the WG to understand whether registry-offered RPMs,
especially those based upon TMCH mark registrations, have been subject to
any such approval review and, if so, what criteria were utilized in their

I think this goes even a step further than the first paragraph in a couple
of ways.  First, the issue of how and whether private RPMs should be
approved seems even further beyond the scope of this WG.  Second, it
advocates for a particular view and interpretation of both the registry
agreement and the nature of private RPMs.  I'm also a bit skeptical that
this is propose just for the WG to "understand" what happened.  RSEP
requests are public, as far as I know, so it would be readily evident
whether any private RPMs were the subject of an RSEP request.  Of course,
even that question assumes too much.  If we find ourselves delving into
questions involving registry agreements, the parameters of Registry
Services and Approved Services, the nature of private RPMs, and the
triggers that require the RSEP process, then I think we've lost our way.

Since this is only a draft statement, I would encourage the Co-Chairs to
revise the statement to exclude these two paragraphs.  Frankly, I would
prefer it if the second draft was nothing more than a set of questions, but
this first draft is something that can't be unseen....


On Mon, Dec 5, 2016 at 3:25 AM, Mary Wong <mary.wong at icann.org> wrote:

> Dear all,
> In advance of the Working Group call this week, and pending circulation of
> the finalized agenda, please find attached the following documents for your
> review and further discussions:
> (1) A draft statement from our Working Group co-chairs regarding the
> provision of additional rights protection mechanisms by the TMCH and
> registry operators (i.e. in addition to the minimum mandatory RPMs
> prescribed by ICANN and which form the basis of our current Policy
> Development Process); and
> (2) A table of all the TMCH-related Charter questions, as refined and
> suggested by the Sub Team and including notes and questions from several
> Working Group members as of 4 December. This document essentially
> replicates the Proposed Edited Questions that were circulated in the form
> of the more comprehensive table that was discussed by the Sub Team, but
> hopefully aids your deliberations as it sets out all the proposed questions
> in one spot.
> Thanks and cheers
> Mary
> On 12/5/16, 07:52, "gnso-rpm-wg-bounces at icann.org on behalf of George
> Kirikos" <gnso-rpm-wg-bounces at icann.org on behalf of icann at leap.com>
> wrote:
>     I think the 2nd formulation of Question #15 is better, as it's more
>     open-ended, yet also asks for specifics on how concerns can be
>     addressed.
>     As an aside, the "Original Question" of #15 suggested "of course with
>     a central database" --- there's no technical reason why a central
>     database would be required. There could instead be multiple
>     independent databases, which registrars and/or registries could query
>     in parallel via a standardized API. There'd only need to be a central
>     *list* of which TMCH providers needed to be queried. From a coding
>     perspective, the registrar/registry could simply query the entire list
>     of providers, and collate the results.
>     Most registrars already have this technology/capability, as they often
>     query multiple registries (and secondary marketplaces) in parallel
>     when customers attempt a new domain name registration (e.g. customer
>     searches for EXAMPLE.COM, but they'll query not only the
>     Verisign-operated .com registry, but also .net/org/biz/info/us and
>     hundreds of other TLDs, marketplaces like Sedo/Afternic, and they'll
>     even generate and query variations of "EXAMPLE.TLD" for availability,
>     presenting the customer with a list of hundreds of alternatives).
>     Sincerely,
>     George Kirikos
>     416-588-0269
>     https://urldefense.proofpoint.com/v2/url?u=http-3A__www.
> leap.com_&d=DgICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6
> sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=6_
> VMDtwqWjvKswt7FWoxbWm99DZdJYcWV1rO_kKPtwk&s=qYMcZKuBn701mhM04nQ0JEKGBbIdXl
> M2qzbr7ngUHqY&e=
>     On Sun, Dec 4, 2016 at 12:25 PM, David Tait <david.tait at icann.org>
> wrote:
>     > Dear All
>     >
>     >
>     >
>     > In advance of the meeting of the Rights Protection Mechanisms
> Working Group
>     > on Wednesday at 1800 UTC, I am pleased to enclose the updated review
> of the
>     > TMCH Charter questions which has been prepared by the Sub-Team
> tasked to
>     > conduct an initial review of these questions.
>     >
>     >
>     >
>     > Staff have been expressly asked to draw your attention to Question
> 15. Two
>     > possible formulations of this question have been prepared and the
> Sub-Team
>     > is seeking the view of the Working Group as to which of these should
> be
>     > adopted.
>     >
>     >
>     >
>     > Kind regards,
>     >
>     >
>     >
>     > David Tait
>     >
>     >
>     >
>     > David A. Tait
>     >
>     > Policy Specialist (Solicitor qualified in Scotland, non-practicing)
>     >
>     > Internet Corporation for Assigned Names and Numbers (ICANN)
>     >
>     >
>     >
>     > Mobile: + 44-7864-793776
>     >
>     > Email:  david.tait at icann.org
>     >
>     > www.icann.org
>     >
>     >
>     > _______________________________________________
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>     > gnso-rpm-wg at icann.org
>     > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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