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

Wed Dec 7 15:16:50 UTC 2016

I agree with Greg and think the two paragraphs he quoted are troublesome.  Sure, taking a look at existing private RPMs as guidance as to what may work/what is feasible makes sense.  Somehow claiming that the working group has “jurisdiction” over private RPMs or opining that any private RPM needed to go through an RSEP is another matter.  The private RPMs are created by Registry policy and I don’t think it is proper for this group to suggest that it is or should be the arbiter of what individual Registry policy is acceptable versus which should have been effectuated through an RSEP.

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From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Wednesday, December 07, 2016 1:22 AM
To: Mary Wong <mary.wong at icann.org>
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] FOR REVIEW/DISCUSSION - NEW co-chairs' statement on additional RPMs, and UPDATED table of TMCH Charter questions

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 evaluation.

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....

Greg

On Mon, Dec 5, 2016 at 3:25 AM, Mary Wong <mary.wong at icann.org<mailto: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<mailto:gnso-rpm-wg-bounces at icann.org> on behalf of George Kirikos" <gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org> on behalf of icann at leap.com<mailto: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<http://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<tel:416-588-0269>
    https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DgICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=6_VMDtwqWjvKswt7FWoxbWm99DZdJYcWV1rO_kKPtwk&s=qYMcZKuBn701mhM04nQ0JEKGBbIdXlM2qzbr7ngUHqY&e=

    On Sun, Dec 4, 2016 at 12:25 PM, David Tait <david.tait at icann.org<mailto: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<tel:%2B%2044-7864-793776>
    >
    > Email:  david.tait at icann.org<mailto:david.tait at icann.org>
    >
    > www.icann.org<http://www.icann.org>
    >
    >
    > _______________________________________________
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    > gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
    > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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