[gnso-rpm-wg] Actions & Notes: RPM PDP WG Meeting 26 Sept 2018

Wed Sep 26 19:51:22 UTC 2018

Dear All,

Please see below the action items and notes captured by staff from the RPM PDP Working Group call held on 26 September 2018 (12:00-14:00 UTC).  Staff have posted to the wiki space the action items and notes.  Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-09-26+Review+of+all+Rights+Protection+Mechanisms+%28RPMs%29+in+all+gTLDs+PDP+WG. 

See also the proposals at: https://community.icann.org/display/RARPMRIAGPWG/URS+Proposals. 

Best Regards,

Julie

Julie Hedlund, Policy Director

==

NOTES & ACTION ITEMS

Actions:

ACTION ITEM: Re: Response Fee Threshold: Staff will research how the 15 threshold was determined.

ACTION ITEM: Staff will check to see if it is possible to find out how many different languages the registration agreements are in, but the data (if any) is likely limited to what is disclosed during the registrar accreditation process.

Notes:

1. Review Agenda/Statements of Interest Updates: 

-- Is Phil Corwin’s affiliation up to date at: https://community.icann.org/pages/viewpage.action?pageId=58729950? Yes, it matches his SOI at: https://community.icann.org/display/gnsosoi/Philip+S+Corwin+SOI. 

2. Discussion of Individual URS Proposals: https://community.icann.org/display/RARPMRIAGPWG/URS+Proposals

1) Brian Winterfeldt’s team: https://community.icann.org/download/attachments/93126760/URS-Proposal-10.pdf?api=v2 

Discussion:

-- Opposed: This would extend time to appeal and respond.  The evidence is the opposite of what is being claimed.

-- Where does the 1 year come from?  

-- Troubling because there is no evidence of a problem.  There doesn't seem to be evidence of harm.

-- I don't think we have any evidence that there is a problem with receiving notice.   We should focus on improving the notice of complaint.

-- If we got rid of the opportunity of a registrant to submit a response after a default determination the registrant could appeal through the de novo appeal process, but that doesn't seem to be correct.  The existing record would be the original complaint.  So the proposal should just be the primary proposal that the time limit should be revisited.

-- 2 points:  (1) . Assuming the evidence shows all of the filings were within 30 days, I do not see a reason to change what is already there.  There is no evidence that the current period has been abused in any way..  (2) . There are a great many ways that registrants may not receive notice.  Assuming (as the evidence suggests) there is no abuse, why should we limit the time and potentially harm those non-abusing registrants who recieved notification late.  Also, I agree with ZAK on the appeal issue.

Response:

-- The 1-year period is the 6 month period and the additional 6 months. 

-- About the appeal -- the appeal is on the existing record, so that is a good point.  One possibility is to work with David McCauley on a combined revised proposal.

Proposers may work with David McCauley on a combined revised proposal.

2) Brian Winterfeldt’s team:: https://community.icann.org/download/attachments/93126760/URS-Proposal-11.pdf?api=v2 

Discussion:

-- Not in favor.  Losing past disputes is not the same as being accused of abuse.  This would promote further defaults by raising the difficulty of responding.

-- Does someone have to pay the response filing fee even if not successful?  

-- 3 sounds like a pretty low threshold in considering whether someone is a bad-faith actor.  Might this incentivize bad behavior to lump cases together to get the discount?

-- What is the evidence supporting this change?  It appears that most abusive URS complaints are defaulted.  So why penalize a registrant who wants to actually deend a URS?

-- Gaming is another strawman argument.  Sort of like a loser pays system. 

-- Possible refinement: That the threshold of 3 would be met by 3 registrations targeting the same trademark.

-- The IRT report had mentioned a threshold of 25 and there was a request to lower that, but we will look into the deeper history.

Responses:

-- A lot of the issues can be addressed by noting that the response fee under the current rules is refundable to the prevailing parties.  That would remain in place.

-- The number 3 was a strawman that ties to the cases of a pattern of 3 constitutes a pattern of bad behavior.

-- We will review all of the comments in the chat and consider refining the proposal.

ACTION ITEM: Staff will research how the 15 threshold was determined.

Proposers will review all of the comments and consider refining the proposal.

3) George Kirikos: https://community.icann.org/download/attachments/93126760/URS-Proposal-24.pdf?api=v2 

Discussion:

-- Question: Does his proposal include who would pay for the translation?

-- The translation would add time to the examiners side, so how will that be addressed?

-- Question: Under the UDRP there is a process that despite the registration language being other than English that English should be the language of the case.  Can this be included?

-- Question to staff: Registration agreement between the registrar and registrant how many different languages those agreements may be in among ICANN-accredited registrars.  Mary Wong: @Phil, we can check with our GDD colleagues but the information (if any) may be limited to what is disclosed during the registrar accreditation process.

Response:

-- The complainant would be responsible for providing the complaint in the language of the registrant.

-- Amenable to follow the UDRP rules.

-- Not sure we can get data on the languages of the agreements between registrars and registrants.

ACTION ITEM: Staff will check to see if it is possible to find out how many different languages the registration agreements are in, but the data (if any) is likely limited to what is disclosed during the registrar accreditation process.

4) Zak Muscovitch: https://community.icann.org/download/attachments/93126760/URS-Proposal-25.pdf?api=v2 

Discussion:

-- How do you handle the issue where a country has multiple official languages?

-- What about a domain name registered defensively in language but couldn't defend it in that language?

-- Very limited evidence for this proposal, which speaks to following the UDRP precedent having the translation being at the request of the respondent since we don't know in advance what their language is.

-- Support combining similar proposals.

-- The issue of translation can cross a lot of areas.  Question: If we were to consider this option we would want to think about what are the languages where this would have the most impact.  How do we allocate costs to keep it fair.  How to allocate languages to not overburden the system?

Response:

-- This proposal seems to be more sensitive to where people are and the languages they speak.

-- In terms of the cost: There isn't any cost of translation since the complaint must be brought in the language of the registration agreement; should be less cost.

5) Brian Winterfeldt’s team: https://community.icann.org/download/attachments/93126760/URS-Proposal-15.pdf?api=v2 

Discussion:

-- Should be deferred to Phase Two.  A different version of loser pays.

-- Also there are issues of identity theft.

-- Any proposal of black-listing registrants is highly problematic.

-- Shouldn't this be up to complainants?  This is a somewhat one-sided proposal.

-- Proposal are unworkable, so it would be helpful if they are reworked.

Response:

-- There are challenges concerning how to apply enhanced penalties, but it is workable.  We don't have to work out the implementation details.

6) Brian Winterfeldt’s team: https://community.icann.org/download/attachments/93126760/URS-Proposal-16.pdf?api=v2 

Discussion:

-- Oppose the proposals.  A way to transform the URS into UDRP through a right of first refusal.

-- Is it your intent to flesh out what are the additional remedies, or are you asking for the TM community to suggest additional remedies?

-- Addresses the under use of the URS in a transformative fashion.  Does call into question how both programs are intended to work together.

-- Support for the idea for a negotiated transfer of a suspended domain name.

-- If the URS allowed a right of first refusal, what would happen in the case of halifax.com?  The proposal would contemplate preventing a good faith use of the name.

Response:

-- What about legitimate TM owners?  They typically negotiate with each other, but it is a good question.

-- We are not saying the suspension period should be eliminated.

Next Steps:

-- Presumption of inclusion of all proposals in the Initial Report.  Need to get feedback on these divergent proposals and how we can reach a compromise.

-- A lot of these proposals are interconnected.

-- Put the issues on the table now.  Seems like any Phase Two proposals will need to be in Phase One, but more efficient to defer the topics to Phase Two.  

-- In the proposals the proposers should consider implementation.

3: AOB: Phase One vs. Phase Two Topics:

-- Not necessary to only suggest for Phase One or Two so topics may generate different discussion or results in each case.

-- Don't want to tell any member of the WG that they can't present something now but have to wait until UDRP.

-- Some issues are unique to the URS, and other topics that can straddle URS and UDRP.

-- Key thing -- deferred proposals are assured of being addressed in full in Phase Two.  Those who want their considered now bear the risk that comments on their proposals now may weigh against them in Phase Two.

-- These are two different proceedings and now is the opportunity to look at the operational fixes and policy recommendations that are fairly tailored to the URS.

-- Anyone has the opportunity to recategorize their proposals by COB Friday, 28 Sept.

-- The PDP Charter contemplates the possibility that Phase One findings may emerge that are relevant to Phase Two discussions - and these should (if known at the appropriate stage) be noted in the Phase One report. The Charter also allows the WG to review its Phase One report if relevant to Phase Two.

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