[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 21 November 2019

Julie Hedlund julie.hedlund at icann.org
Thu Nov 21 22:50:22 UTC 2019


Dear Working Group members,

Please see below the notes from the meeting on 21 November 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-11-21+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie
Julie Hedlund, Policy Director

Notes and Action Items:

Actions:

Contractual Compliance:

ACTION ITEM: Ask a couple of people to work on these suggestions:
-- We could make a recommendation that a registry or registrar that has access to the TMCH should not download a copy of all the strings in the TMCH to set up reserved names.
-- We could modify the dispute mechanism to include this type of case.  See what if anything could be changed in a Sunrise dispute mechanism policy.

CCT-RT Recommendations:

Recommendation #9:
ACTION ITEM: Proposal to consider -- The WG would say that a global discount program is not something that is feasible at this point. There are new services that came on the market since the CCT-RT work was done and we could see if any of these address the recommendations.  Also, what have trademark owners learned from the last round.  Then we could say that certain types of data should be collected by ICANN to see if this really is an issue for subsequent TLDs.

Notes:

1. Welcome and Updates to Statements of Interest:

-- Paul McGrady is no longer on the GNSO Council. He will update his SOI.

2. Contractual Compliance -- Data Metrics: https://docs.google.com/document/d/1eYhtbK_sEKWzdUjwg7zURL2HnKYTYCJeItX-h66XgEw/edit?usp=sharing [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_document_d_1eYhtbK-5FsEKWzdUjwg7zURL2HnKYTYCJeItX-2Dh66XgEw_edit-3Fusp-3Dsharing&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=adDIs0WEx_lLwFfrsdovxTYY8GkRHo5ibc8SR3Npdh8&m=CQEth_7agzL4nstv-7WTuaAuI6d1I-2inhjqcYiT46I&s=xcPPuNxNs0eOlxMeuVzcdfXkng1jyX8ejCj3XWEg6h0&e=>

Is there evidence of “arbitrary and abusive pricing for premium domains targeting trademarks; use of reserved names to circumvent Sunrise; and operating launch programs that differed materially from what was approved by ICANN.” If yes, how should these issues be addressed?

-- Corresponded with the RPM PDP WG that this issue was more properly in scope for the SubPro PDP WG.
-- INTA comments: Agreement/New Idea/Concerns - Points to 2017 INTA study for examples of issues experienced (see full comment for list of examples). Reports that INTA has been raising concerns about pricing and other practices which appear calculated to circumvent the RPMs, and for which little or no action appears to be taken by ICANN Compliance, since 2015.
-- IPC: Agreement
-- LeMarit: Agreement/New Idea
-- Neustar: Is not aware of any evidence that would support the assertion that these operational practices are being implemented.
-- RySG: Has no empirical evidence of these types of activities and generally believe these allegations are unsupported. If these activities are occurring, existing mechanisms are sufficient to address them.

Discussion:
-- Should the WG make recommendations relating to this issue?  Some comments say there is evidence others say there isn’t a problem.
-- Opposed to premium pricing per se.  The starting point is a ban on premium pricing.
-- What's the harm in doing something about it?  If the new gTLD registries are sure that nothing untoward is going on, then they won't mind making it clear that premium domain names can only be listed after Sunrise is done.
-- Can see that for some TLDs the concept of premium pricing may well have merit.  Earlier comments say there is specific evidence; we should go back and get those specific cases.  We need to understand if there is an issue that needs to be addressed.  The comments are disagreeing with each other.
-- The TMCH has every single ascii letter and number. TM holders gamed the TMCH. And the argument over what’s a brand and what’s generic isn’t for registries to decide.
-- Where a registrant has created the value in the string it’s particularly irksome to be charged a premium price. Example of Facebook creating the value and then being charged a premium price.
-- Much more legitimacy for ICANN's new gTLD program.  It suffers from the perception that it was based primarily on the hope that brand owners would show up and financially support it.  The premium domain names that corresponded to brands and were not available in Sunrise just appeared predatory and the ICANN's Board's unwillingness to do anything about it just made them look complicit.  ICANN needs all the legitimacy it can borrow right now.
-- One of the arguments from the trademark owners that we’ve heard and in the INTA study it is true that for a number of registries the domains were often considered premium once they came out of Sunrise.
-- Once of the CCT-RT recommendations has to do with pricing and brand owners and using RPMs.
-- Is there something we could say that might satisfy both the trademark owners and the registry concerns?
-- Creating a generic brand type test is difficult.
-- Or you could automatically do a Sunrise, or a Sunrise before you can release them to another owner.
-- It is a business decision by the brands to register their name in a TLD, and weren't there other mechanisms put in place such as the URS to allow TM owners a quick way to address illegitimate registration?
-- There were no mechanisms to challenge premium pricing of the registry.
-- Legitimate TM holders did not game the TMCH.  Domain speculators gamed trademark offices and the TMCH. If registries aren’t supposed to be determining what a trademark is, then registries should stop premium pricing for trademarks.  In some cases, it’s been quite obvious where registries are targeting trademarks and trademark owners.
-- We can’t outlaw reserved names.  Not sure that we can regulate pricing, but sounds like there are issues.
-- PDDRP might work here but only if there was an avalanche of activity by a single registry.
-- Many trademark owners felt that the pricing that was assigned to names was designed to circumvent the RPMs. Perhaps that could be a factor in a PDDRP against a registry.
-- Legitimate registries didn’t extort legitimate trademark holders.
-- But isn’t relegating pricing on sunrise names exactly what they are asking for?  Forbid the pricing to prevent circumvention is a form of regulation.
-- If a registry is putting special prices on these that are in the TMCH, the problem of course is that someone can register a trademark, but it in the TMCH, quite easily and then make sure the pricing can’t be increased on it.  People will be gaming this on both sides.  You shouldn’t be using the TMCH to see who you can charge more for a name.
-- Parse it down a little further.  We see to be talking about two different things in chat: 1) premium pricing in a Sunrise and 2) in conjunction with reserved names that are only available after Sunrise is closed.  I thought we were talking about the latter, which isn’t a pricing issue, but whether the Sunrise is being honored.  What is it that we are talking about?
-- The RPMs PDP WG is well aware of this issue.
-- We are not to talk about what is in the TMCH, etc., but whether we believe that there are things registries are doing that have the effect of circumventing the RPMs.
-- The terms of the registry agreement have a prohibition on ICANN regulating pricing.  It’s not practical to approach this from the standpoint of regulating pricing.  Sounds like we would need to approach this the standpoint of dealing with reserved names.
-- This is not a pricing issue and I agree ICANN needs to stay out of that.  I think the real concern here is that the entire RPM process is observed.

-- Focus on those actions that have the effect of circumventing the RPMs.
-- The fact that registries can play this game and try to charge premium pricing for certain strings suggests registries have monopoly over certain strings.
-- We should have a policy of preventing abuses in the pricing system.
-- Remember, our group is not dealing with what is in the TMCH or what is required to show to get your mark in there
We are only dealing with the limited issue of circumvention of the RPMs.
-- For use in Sunrise, use must be proven to the TMCH.  The great majority of trademarks in TMCH have submitted proof of use in order to participate in Sunrise.  Only a few chose not to, and they only participate in Claims, which doesn’t block.
-- That is the mechanism to challenge any gaming in the TMCH.
-- Sunrise DRP only has limited causes of action.  TMCH issues will be challenged through the TMCH DRP not the Sunrise DRP.
-- Jeff I think the terms of use of the TMCH limit access to the list solely for claims notification and verification of the name in the TMCH. Check that first
.
-- Is the Sunrise dispute resolution mechanism something the RPMs group is looking at?  Answer: The RPMs PDP WG did look at the Sunrise DRP and will have recommendations for improving it.  A wrongly granted Sunrise registration that did not result from a bad TMCH entry is something that could be dealt with under the Sunrise DRP.  The Sunrise DRP was created before the TMCH was created so it ended up being redundant to TMCH challenges.  See: https://www.icann.org/sites/default/files/tlds/xn--ngbc5azd/xn--ngbc5azd-sdrp-naf-31oct13-en.pdf
.
-- Re: Trademarks have to be used to be protected -- that is not true in all jurisdictions.
-- RPMs PDP WG did address several times of actions that would result in reserving names.
-- For Sunrise you do have to put proof of use in the TMCH even if you didn’t need to do it to get your name registered.
-- The notion of whether reserving names prior to Sunrise for the purpose of either circumventing the RPMs is something we agree is not a good thing.  We just need to think of where a challenge could be made for that type of action.
-- Not trying to prevent legitimate uses of the TMCH.
ACTION ITEM: Ask a couple of people to work on these suggestions:
-- We could make a recommendation that a registry or registrar that has access to the TMCH should not download a copy of all the strings in the TMCH to set up reserved names.
-- We could modify the dispute mechanism to include this type of case.  See what if anything could be changed in a Sunrise dispute mechanism policy.

3. CCT-RT Recommendations -- see: https://docs.google.com/spreadsheets/d/1PGV5_nMafLWtSHyCGdr-b8eqoJj9B8YKBSh<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_spreadsheets_d_1PGV5-5FnMafLWtSHyCGdr-2Db8eqoJj9B8YKBSheVJQcvHg_edit-23gid-3D0&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=adDIs0WEx_lLwFfrsdovxTYY8GkRHo5ibc8SR3Npdh8&m=CQEth_7agzL4nstv-7WTuaAuI6d1I-2inhjqcYiT46I&s=_XTDCfkKmKqnVvDXLipjUnSpWQxWcRAfyzsdNb-WwWs&e=>
eVJQcvHg/edit#gid=0 [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_spreadsheets_d_1PGV5-5FnMafLWtSHyCGdr-2Db8eqoJj9B8YKBSheVJQcvHg_edit-23gid-3D0&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=adDIs0WEx_lLwFfrsdovxTYY8GkRHo5ibc8SR3Npdh8&m=CQEth_7agzL4nstv-7WTuaAuI6d1I-2inhjqcYiT46I&s=_XTDCfkKmKqnVvDXLipjUnSpWQxWcRAfyzsdNb-WwWs&e=>

-- Talking about the recommendations specifically targeted at this PDP WG.
-- We need to decide if it is proper for this WG to address the recommendations.
-- If so, what should we be doing to address it.
-- Comment period on implementation plan for accepted CCT recs is complete - these comments now being analyzed.

Recommendation #9:
WG Co-Leaders: The recommendation appears to be directed more at the RPMs WG, with the text stating that, "uneven distribution of costs of defensive registrations to a small number of trademark holders may be an unanticipated effect of the current RPM regime..." It is likely beyond the remit of the SubPro PDP to affect that RPM regime, so it is unclear what actions may be needed from the SubPro PDP.  The SubPro PDP may want to coordinate with the RPMs PDP to determine if one or both the PDPs should be responsible for considering this recommendation.
Comments:
Jim Prendergast: But don't pricing policies come under our remit? Agree there may be some RPM play here but I don't think we are completely absolved of responsibility either.
Jeff Neuman: Having read this section, which I attach below, it was clear that the CCT RT did not fully understand who this should go to, but at the end of the day, it relates to reducing the amount of defensive registrations (See pg 72 of report - "Success measures."). There is no way to address this recommendation other than through an exhaustive look at the RPMs. (see full comment)

Discussion:
-- Very hard to address this recommendation.  There is very little data and not all registries are connected to this centralized registry.  Doesn’t seem like a feasible recommendation for this WG.  There is no way to do a global discount program.
-- If there a small number of trademark owners that register most of the names -- not many Sunrise registrations but a large portion of these registrations are from very few trademark owners.  So, what is causing these few companies to register in every Sunrise while some are not.  They are paying the lion’s share so is there a way to lower the cost.
-- This is unsolvable.  There are many different reasons to register defensively.
-- Have we considered asking members of the CCT-RT how they think this could be accomplished?  Answer: On this recommendation we did talk to them and asked them this question.  The response was that the CCT-RT doesn’t have an answer to this.  We just noted this data correlation, but thought it was something for this WG to consider.
-- Not all brands are uniformly dependent on Internet traffic and not all TLDs are as inherently "scary" as the next.  .Sneakers would be much "scarier" to NIKE than .birthdaycake.
-- Forcing discounts is also a form of price control and ICANN should steer clear.  If registries want to offer blocking services in order to keep down the need for defensive registrations, great, but that should be the product of the free market.
-- Registries are not connected to each other, but the common nexus is ICANN so maybe they could serve as a conduit.
-- Several registries offer a domain mark protection list so that a mark holder can pay a small amount for blocking registration of their brand across many TLDs.
-- Perhaps we can recommend a "best efforts 'by ICANN.org  to establish this data set might help.
ACTION ITEM: Proposal to consider -- The WG would say that a global discount program is not something that is feasible at this point. There are new services that came on the market since the CCT-RT work was done and we could see if any of these address the recommendations.  Also, what have trademark owners learned from the last round.  Then we could say that certain types of data should be collected by ICANN to see if this really is an issue for subsequent TLDs.

Recommendation #12:
WG Co-Leaders: The SubPro PDP has not thoroughly considered the findings from the Nielsen surveys, which at a high level indicated that, "the public believes that websites have different extensions to “properly identify the purpose or owner or to give an indication of content or function.” As such, the PDP WG has also not considered whether it believes that creating incentives or removing potential barriers (e.g., application fee, annual fees, possible need for RSEP) to operating restricted TLDs is in the best interest of the program.

Discussion:
-- We have talked about this and we put some of this out for public comment.
-- Would be nice to know what the incentives and disincentives are…
-- The WG does not need to recommend specific incentives or disincentives, but if they don’t this will have to be addressed in implementation.
-- It’s a policy decision whether to provide these incentives. We could agree or disagree with the CCT-RT. We could adopt it, not adopt it, or adopt it with modifications.
-- It is not clear if you can identify verified TLDs in the public interest. We should make a recommendation in this regard. If we can make a recommendation about how to do it, that would be better. But we can’t ignore it. This issue is directly linked to consumer trust and the public interest.
-- This is a nice idea, but the RA is already convoluted and confusing enough. The incentives should exist outside of the RA mechanism. There might be incentives that only last for a limited period of time. In terms of developing mechanisms, simpler is better.
-- One simple solution is lower fees. Other solutions might be more difficult.
-- What if verified TLDs got priority in the way that communities got priority in contention sets in the 2012 round?
-- Running a verified TLD costs more and tends to have fewer registrations. Verified TLDs may be able to pay less at auction and may be less able to pay fees.
-- You could also provide support registrars. This could make it more valuable to the registry.
-- This topic will be discussed further on the next call on Tuesday, 26 November 2019 at 03:00 UTC for 90 minutes


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