[GNSO-RPM-WG] Notes and Action Items: RPM PDP WG Meeting 26 February 2019

[Julie Hedlund]

Dear All,

Please see below the action items captured by staff from the RPM PDP Working Group call held on 26 February 2019 at 18:00 UTC.  Staff will post these to the wiki space.  Please note that these are high-level notes and are not meant as a substitute for the recording, chat room, or transcript. The recording, Zoom chat, transcript and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2020-02-26+Review+of+all+Rights+Protection+Mechanisms+%28RPMs%29+in+all+gTLDs+PDP+WG.

Best Regards,
Julie
Julie Hedlund, Policy Director

==

NOTES & ACTION ITEMS

Actions:

Finalize Discussion of Deliberations of the Working Group: URS Individual Proposals:

5 Overarching Questions: ACTION ITEM: Include a reference in the Executive Summary and specifically ask for public comments on the questions in the Next Steps Section.
Proposal #15: ACTION ITEM: Incorporate new language from Zak Muskovitch and Claudio Di Gangi: “There was general support in the Working Group for publishing this Individual Proposal in the Initial Report to seek public comment, with some Working Group members supporting the Individual Proposal as drafted. However, some Working Group members expressed opposition in terms of both substance and implementation of the Individual Proposals including the proposed remedies and the definition of “repeat offender” and of “high volume cybersquatting”.”
Proposal #22: ACTION ITEM: Revise the questions to: “The Working Group seeks public comment on: 1) the appropriateness of a “loser pays” model; 2) the definition of specific criteria (e.g., “repeat offender” over a defined time period, “high volume cybersquatting”); 3) the specific item(s) that should be paid in a “loser pays” model (e.g., administrative fees, attorneys’ fees), and 4) the enforcement mechanism of the proposed model.”
Proposal #31: ACTION ITEM: Add a footnote to cross-reference to original charter question #4 in the annex, but note that the WG has not yet addressed this overarching question, but will do so following the analysis of the public comments on the Initial Report (see Next Steps section).
Proposal #33: ACTION ITEM: Add a footnote to link to the MOU for URS Providers.
Proposal #34: ACTION ITEM: Indent the sub-paragraphs to make it clear that they are referenced text and add quotes.  Then add “The proponent proposed...” at the beginning of the last paragraph.
Proposal #36: ACTION ITEM: Add a link to the URS Procedure at the text “Under the URS Procedure...”

Notes:

1. Updates to Statements of Interest: No updates provided.

2. ICANN67 Status:

-- First ever virtual meeting.
-- Reduced schedule and not the usual number of meetings.
-- Logistical and other challenges for supporting a virtual meeting.
-- Run through the original Cancun dates and original hours 7-12 March and 9-5 pm local time.
-- Most groups will not have weekend sessions.  Most are Monday-Thursday.
-- We will be able to schedule all of the requisite PDP meetings; but we don’t have the exact times yet.  All PDPs are scheduled 9-5 pm, no conflicts with Public Forum or Board meeting.
-- Avoiding SubPro/RPMs conflicts.
-- GAC has indicated its high priority topics are EPDP and SubPro, so trying to avoid conflicts with the GAC schedule and SubPro/EPDP.

3. Review Revisions from Action Items: TMCH Individual Proposals for which the Working Group is Seeking Input:https://docs.google.com/document/d/1fh6KnBvqH78Pmo7qUBtR3JyIIvUifJ-8hzX9dcJruuA/edit?usp=sharing [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_document_d_1fh6KnBvqH78Pmo7qUBtR3JyIIvUifJ-2D8hzX9dcJruuA_edit-3Fusp-3Dsharing&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=adDIs0WEx_lLwFfrsdovxTYY8GkRHo5ibc8SR3Npdh8&m=pHx2VgLeBUkGzKocmXOoBBhL4753w_2vn37aRHMG6mE&s=wMO-1FtvuW_B3Am7MC4vVwZ03d5TeTRZSNjheGu7Wi8&e=>

Proposals #2 and #3:
-- Added in the intro and on page 4: “The rationale provided by the proponent did not receive support or endorsement by the full Working Group. In some cases, some Working Group members had concerns about the accuracy and validity of some proponents’ rationale. “

Proposals #4 and #5: Added a footnote in the context/deliberations pointing to the section of the AGB: “Section 3.6 of the Applicant Guidebook, which states: "Data supporting entry into the Clearinghouse of marks that constitute intellectual property of types other than those set forth in sections 3.2.1-3.2.3 above shall be determined by the registry operator and the Clearinghouse based on the services any given registry operator chooses to provide."

Proposal #6: Added a footnote: “For example, a WG member noted that several registries had experienced downtime issues when accessing the TMDB".

Proposal #7:
-- Added the word “sharply” in front of “diverging”: The Working Group had [sharply] diverging opinions on whether the TMCH Database should remain confidential or become open and searchable.
-- Changed the word “validated” to “included”: “On the other hand, Working Group members who supported this proposal thought that allowing the TMCH Database to be searchable could yield information that may be used to flag trademarks that ought not to have been [included], e.g. via objection proceedings initiated with the TMCH provider.”

4. Finalize Discussion of Deliberations of the Working Group: URS Individual Proposals: https://docs.google.com/document/d/1kHBPLtbp6BgqmxZGPHC1Yeciulvvk79niPOuURI8L5U/edit?usp=sharing [docs.google.com]<https://docs.google.com/document/d/1kHBPLtbp6BgqmxZGPHC1Yeciulvvk79niPOuURI8L5U/edit?usp=sharing%20%5bdocs.google.com%5d>

5 Overarching Questions:
-- Do we need to ask for comments on the specific 5 questions in the Initial Report?
-- The questions are in the next steps and we can ask for comments, as well as add a reference in the Executive Summary.
ACTION ITEM: Include a reference in the Executive Summary and specifically ask for public comments on the questions in the Next Steps Section.

Proposal #15:
ACTION ITEM: Incorporate new language from Zak Muskovitch and Claudio Di Gangi: “There was general support in the Working Group for publishing this Individual Proposal in the Initial Report to seek public comment, with some Working Group members supporting the Individual Proposal as drafted. However, some Working Group members expressed opposition in terms of both substance and implementation of the Individual Proposals including the proposed remedies and the definition of “repeat offender” and of “high volume cybersquatting”.”

Proposal #16: No changes from the WG.

Proposal #22:
-- Comment: “I thought we were going to ask the public about the appropriateness of a "loser pays" model, as well as specific criteria (e.g. "repeat offender" or "high-volume cybersquatting") and enforcement mechanisms.”
-- The WG question currently presupposes a loser pay model as it formulates the questions for PC so anonymous comment questions that it seems - seems hand-in-hand and fair.
-- I agree that the broader question (appropriateness of the model) is material to ask.
ACTION ITEM: Revise the questions to: “The Working Group seeks public comment on: 1) the appropriateness of a “loser pays” model; 2) the definition of specific criteria (e.g., “repeat offender” over a defined time period, “high volume cybersquatting”); 3) the specific item(s) that should be paid in a “loser pays” model (e.g., administrative fees, attorneys’ fees), and 4) the enforcement mechanism of the proposed model.”

Proposal #26: No changes from the WG.

Proposal #27: No changes from the WG.

Proposal #28: No changes from the WG.

Proposal #29: No changes from the WG.

Proposal #31:
-- Should flag that this is a charter question that the RPMs PDP WG was asked to consider.
ACTION ITEM: Add a footnote to cross-reference to original charter question #4 in the annex, but note that the WG has not yet addressed this overarching question, but will do so following the analysis of the public comments on the Initial Report (see Next Steps section).

Proposal #33: ACTION ITEM: Add a footnote to link to the MOU for URS Providers.

Proposal #34: ACTION ITEM: Indent the sub-paragraphs to make it clear that they are referenced text and add quotes.  Then add “The proponent proposed...” at the beginning of the last paragraph.

Proposal #36:
-- WG members agreed that it would be helpful to include a link to the URS Procedure at the beginning of the proposal rationale.
-- There is a footnote that proposal #36 supersedes proposals #9 and #10.  Those proposals included data in their rationale, but #36 does not reference that data nor is it based on it.
-- There is no reference to data in the context of the WG’s deliberations since data was not part of proposal #36 and so the WG did not discuss any data.
-- One WG member suggested referencing the data from proposal #10, but other WG members expressed concerns that such a reference would be out of context since the WG is requesting comment on proposal #36, not proposals #9 or #10.
-- Several WG members agreed that calling out in the footnote that proposals #9 and #10 are superseded by proposal #36 is sufficient reference.  All proposals can, in any case, be viewed on the WG wiki.
ACTION ITEM: Add a link to the URS Procedure at the text “Under the URS Procedure...”

5. Review Project Change Request and Revised Work Plan:

-- See attached form.
-- Submitted to GNSO Council on 10 February.
-- Council considered on 20 February and councilors have until 27 February to provide comments.  Council leadership will notify RPMs PDP WG Co-Chairs of approval by 28 February.
-- Timeline is extended for 5.5 months to allow more time to review public comments and prepare the final report; deadline to submit Final Report to Council is mid-October, but Co-Chairs will develop a work plan that will assume a deadline of mid-September.
-- The WG cannot request further Project Change Requests.
-- Working Group co-chairs (1) will commit to work together (practically, this may mean allowing a decision to be made by two of the three as opposed to all three co-chairs), with the common goal to complete Phase One on time, understanding that there may be consequences for the work (e.g., suspension of the PDP) if this is not done; and (2) are willing to be firm with the Working Group, and do whatever needs to be done, in order to deliver the Final Report in a timely manner; and (3) will develop a detailed plan to produce the Initial Report, review comments and produce a Final Report and clearly communicate this process to working group members.
-- Because there is no travel to ICANN67, the WG will meet on 04 March and begin to discuss topics that would otherwise have been begun at ICANN67: TM-PDDRP and Additional Marketplace RPMs; so WG may not need all 4 sessions at ICANN67.
-- Staff confirms that the WG will be able to complete the review of the Initial Report during ICANN67 so that the report can be published for public comment on 18 March.
-- Given that the report is due on 18 March, there will be no meeting that day.
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