[gnso-rpm-wg] Proposal to Shift URS review to Phase II
Paul Tattersfield
gpmgroup at gmail.com
Fri Apr 6 13:24:38 UTC 2018
*it is also recommended that Phase II Working Group has one chairperson
with appropriate neutrality and experience in PDP consensus building and
parliamentary procedures*
That is quite a precise skill set, did you have someone in mind?
On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <
john.mcelwaine at nelsonmullins.com> wrote:
> Dear RPM Working Group:
>
>
>
> In our meeting in San Juan, Puerto Rico, I raised the issue of moving the
> work set forth in this Working Group’s charter relating to the URS to Phase
> II. The Chairs asked that I put something in writing detailing the
> specific recommendation and reasoning, which I present below and have also
> attached hereto in a Word document for your review and consideration.
>
>
>
> Kind regards,
>
>
>
> John
>
>
>
> Proposal to Shift URS from Phase I to Phase II:
>
>
>
> 1. On 15 December 2011, the GNSO Council requested that eighteen (18)
> months after the launch of the New gTLD Program ICANN staff prepare and
> publish an Issue Report on the state of all rights protection mechanisms
> implemented for both existing and new gTLDs, including but not limited to
> the UDRP and URS. The Council subsequently agreed to extend the timeline
> for a report by a further six (6) months.
>
>
>
> 2. On 9 October 2015, a Preliminary Issues Report was published
> discussing the scope of this potential PDP and outlining three possible
> options for moving forward. The third option ultimately was elected at
> that time:
>
>
>
> The “third option would be to conduct a policy review of all the RPMs in
> two phases, with the initial phase being a review only of the RPMs
> developed for the New gTLD Program. . . . The second, subsequent phase of
> work would be a review of the UDRP, based on the concerns specific to its
> scope that were raised in the 2011 GNSO Issue Report and any additional
> relevant topics derived from the first phase of work concerning the RPMs
> developed for the New gTLD Program.”
>
>
>
> 3. On 15 March 2016, the two phase approach was approved in the
> Charter for the Review of all Rights Protection Mechanisms (RPMs) in all
> gTLDs PDP Working Group (“RPM Working Group”). Phase One was to focus on a
> review of all the RPMs that were developed for the New gTLD Program, and
> Phase Two will focus on a review of the UDRP.
>
>
>
> 4. The Objective & Goals in the PDP’s Charter were to examine (i) the
> RPMs effectiveness, (ii) whether the RPMs collectively fulfil their
> purposes, and (iii) whether additional policy specific recommendations are
> needed, including to clarify and unify the policy goals. RPM Working Group
> Charter, at p. 3. The Objectives & Goals in the PDP’s Charter were broadly
> defined:
>
>
>
> “In addition to an assessment of the effectiveness of each RPM, the PDP
> Working Group is expected to consider, at the appropriate stage of its
> work, the overarching issue as to whether or not all the RPMs collectively
> fulfill the purposes for which they were created, or whether additional
> policy recommendations are needed, including to clarify and unify the
> policy goals. If such additional policy recommendations are needed, the
> Working Group is expected to develop recommendations to address the
> specific issues identified. The Working Group is also directed to bear in
> mind that a fundamental underlying intention of conducting a review of all
> RPMs in all gTLDs is to create a framework for consistent and uniform
> reviews of these mechanisms in the future.”
>
>
>
> 5. However, the RPM Working Group Charter also contains a lengthy
> attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS
> PDP” This “list was derived from various community suggestions in different
> forums, they are not listed in any particular order of importance nor has
> staff attempted to analyze the merits, relevance or significance of each
> issue”. This list contains topics that are out of scope when compared with
> the Objectives and Goals, including:
>
>
>
> 1. Are generic dictionary words being adequately protected so that
> they are available for all to use as allowed under their national laws and
> international treaties? E.g. sun, window
>
> 2. Should monetary damages be awarded?
>
> 3. Are last names and geographic places adequately protected so that
> they are available for all to use as allowed under their national laws,
> e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?
>
> 4. Should injunctive relief be available?
>
> 5. Now that Reverse Domain Name Hijacking is a regular finding of
> UDRP panels, indicating that domain name registrants are being abused by
> complaints brought against them in the UDRP process, what penalties and
> sanctions should be imposed on Complainants found to be reverse domain name
> hijackers? How can those penalties and sanctions be aligned so as to be
> fair, as compared to the loss of a domain name taken from a registrant
> found to be a “cybersquatter”?
>
>
>
>
>
> 6. Issues from this list and other new out of scope issues,
> complaints and modifications are causing the work of the RPM Working Group
> to slow and are polarizing the members; thus, harming the ability to
> achieve consensus in the Working Group. As recommend by the PDP breakout
> group and discussed by the Community in attendance at the Sunday gNSO
> Working Session in San Juan, it would be particularly useful if working
> group charters would:
>
>
>
> 1. Define clearly what success for the proposed working group ”should
> look like”. (K. Kleiman reporting on breakout session, Transcript ICANN61
> San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS
> (“Transcript”) at p. 5).
>
> 2. Define topics or issues that must be addressed, may be addressed
> and may not be addressed. (Transcript at p. 4).
>
> 3. Have “more defined issues, [be] more bounded, more limited.”
> (Transcript at p. 5).
>
> 4. Have a narrower scope and be broken up into separate projects.
> (Transcript at p. 5).
>
> 5. Having a charter drafting team that “that are experts, and that
> might mean a legal expert, but we should also have people that have
> experience, practical experience.” (S. DelBianco reporting on breakout
> session, Transcript at p. 5).
>
>
>
> 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices
> are RPMs relating to the registration process of domain names in the new
> gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory
> dispute resolution proceeding to recover a domain name that has been
> clearly registered in bad faith. Since the URS is intended to be
> complementary of the UDRP and will have similar issues it would be more
> efficient to address these RPMs in a more cohesive manner.
>
>
>
> 8. With respect to the URS and UDRP, The European Parliament, the
> Council of the European Union, and the European Commission have enacted a
> new data privacy regulation in 2016 entitled the General Data Protection
> Regulation (GDPR) that will likely adversely impact the ability of the URS
> and UDRP to function as these policies are currently implemented. The new
> regulation is scheduled to take effect on May 25, 2018. Among other ways,
> GDRP may adversely impact the URS and the UDRP by:
>
>
>
> 1. Procedure for UDRP/URS:
>
> 1. Possibility that Providers cannot serve the UDRP/URS Complaint if
> an email address cannot be obtained.
>
> 2. Possibility that the Language of the URS proceeding cannot be
> determined.
>
> 2. Procedure for URS:
>
> 1. Possibility that the URS provider cannot translate the notice of
> URS complaint into the predominant language used in the Registrant’s
> country or territory.
>
> 2. Possibility that URS complainants cannot know the language of a
> possible response.
>
> 3. Possibility that URS complainants do not know whether the URS
> complaint was translated into the correct language(s) and that proceedings
> were administered correctly.
>
> 3. UDRP Element 2 / URS:
>
> 1. Cannot argue that the registrant is not commonly known by the
> Domain Name at issue.
>
> 2. Cannot determine if the registrant has been authorized by the
> Trademark holder.
>
> 3. Cannot determine if the registrant is an authorized reseller of
> the Trademark holder’s product.
>
> 4. Cannot determine on what date the domain name was “registered” by
> the current domain name holder if it was transferred to this current domain
> name holder. (requires being able to see the WhoIs history). This could
> prevent baseless claims from being filed.
>
> 4. UDRP Element 3:
>
> 1. Cannot determine if registrant has engaged in a pattern of bad
> faith registrations. Rule 4(b)(ii).
>
> 2. Cannot determine if registrant has been found to engage other
> unlawful actions, such as malware, phishing or scams.
>
> 3. Cannot determine if the registrant is in a particular geographic
> region to be better assess the possibility of legitimate co-existence (thus
> possibly even foregoing the filing of a case, and response, in the first
> place).
>
> 4. Cannot determine if the registrant is technically a “competitor”
> that has registered the Domain Name for the purpose of disrupting the
> business of the Complainant. Rule 4(b)(iii).
>
>
>
> 9. Due to GDPR compliance issues, ICANN org is considering
> substantial changes to WhoIs, and has published an Interim Model for GDPR
> Compliance, e.g. "The CookBook" which proposes to significantly limit the
> public display of WhoIs data after May 25, 2018." see:
> https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-
> 08mar18-en.pdf. Aggressive current timelines for tiered access to WhoIs
> data that might provide some fix for the above issues is December 2018.
> There is no question that GDPR will require policy consideration relating
> to the URS and UDRP that cannot be predicted and analyzed at this time.
>
>
>
> Recommendation:
>
>
>
> 1. The RPM Working Group finishes its already well-advanced work and
> issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise,
> and Trademark Claims Notices for public comment.
>
> 2. After comments have been analyzed for those elements, that the RPM
> Working Group finishes its work and issues its Final Report on the PDDRP,
> Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.
>
> 3. The RPM Working Group issues a request through its Appointed
> Working Group Liaison to the GNSO Council to amend the RPM Working Group
> Charter as follows:
>
> 1. shift the work related to the URS to Phase II and, if necessary,
> pause starting Phase II until after the permanent impacts of GDPR on the
> URS and UDRP are known;
>
> 2. provide clear guidance to the WG on the issues that (i) must be
> addressed, (ii) may be addressed, and (iii) may not be addressed;
>
> 3. provide clear guidance on the scope of the review of the URS and
> UDRP.
>
>
>
> Although a separate issue from this proposal, it is also recommended that
> Phase II Working Group has one chairperson with appropriate neutrality and
> experience in PDP consensus building and parliamentary procedures.
> Assistance to the chair can be provided by utilizing vice-chairs and
> well-structured sub-teams.
>
>
>
>
>
> *[image: http://www.nelsonmullins.com/img/ecard-logo.png]*
>
>
>
> *JOHN C. MCELWAINE **PARTNER*
>
> *john.mcelwaine at nelsonmullins.com <john.mcelwaine at nelsonmullins.com> *
>
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