[Gnso-ppsai-pdp-wg] Service Provider Action on Request - a proposed standard and compromise

[Kathy Kleiman]

Dear All,
Since our important discussions of last week, a group has been working 
in the background to try to figure out a set of rules that would not 
bring ICANN directly into the Reveal process (the "Complex Case Advisory 
Group" concept) and that would not force Providers to voluntarily share 
and pool information and advice (something with potential competition 
implications).

What we would propose is the addition of a standard to Section III, 
/Service Provider Action on Request /-- that the PPSAI Reveal under 
Category F be limited to "slam dunk" cases of obvious clear-cut 
infringement.  Our model here is the light-weight URS procedure for 
suspending names in the New gTLDs.

What we mean by "slam dunk" cases is cases of obvious clear-cut 
trademark and copyright infringement presented by the Requestor without 
clear or reasonable defenses presented by the Customer or visible to the 
Provider. The defenses set out for the URS include: that the registrant 
is commonly known by the name of the domain name (e.g., it is a his/her 
last names or longterm nickname), he/she/it is using the domain name 
and/or mark before the trademark existed, there is fair use or fair 
dealing, parody or tribute sites. Legitimate defenses might also include 
comparative advertising -- using a competitor's name in advertising 
comparing products or services in countries which such ads are legal.

We further propose the addition of language to allow the Provider to 
take action of its own accord and the wording: "Nothing in this proposal 
shall prohibit a provider from determining the use of the service may 
violate its terms of service and reveal the underlying information 
despite the criteria of this proposal not being met."

We have worked hard since our last meeting, and diligently over the 
weekend, and hope this moves us towards a reasonable and compromise.
Best,
Kathy
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