[GNSO-RPM-WG] Notes and Action Items: RPM PDP WG ICANN69 Working Sessions 13 October 2020

Tue Oct 13 16:04:31 UTC 2020

Dear All,

Please see below the action items captured by staff from the RPM PDP Working Group ICANN69 Working Sessions held on 13 October 2020 at 12:00 and 14:00 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/2020-10-13+Review+of+all+Rights+Protection+Mechanisms+%28RPMs%29+in+all+gTLDs+PDP+WG.

Best Regards,
Mary, Ariel, and Julie

==
Action Items:

Revised URS Recommendation #9 and Converted Individual Proposal #34<https://docs.google.com/document/d/1Re1gmf1qbfl969fILQYQjhvGQdH2fBr500-V0o-bicw/edit%20%5bdocs.google.com%5d>
ACTION ITEM: Staff will revise the language of the recommendation arising from converted URS Individual Proposal per the WG discussion and the related recommendation relating to language concerning the notice of complaint.

Annex B – Charter Questions<https://docs.google.com/document/d/1hmF5eKnuwjv-Sk4cWfTkM_omKpr0kLH2SSUjAnkFWII/edit> and Additional Marketplace RPMs<https://docs.google.com/document/d/1Kf-on75LuwwjI-qfvx5YwX5q5ztauB3ivGD3rInJu4Q/edit>:
Re: “In reviewing the public comment, the Working Group noted that several commenters expressed the desire for the Globally Protected Mark List (GPML) as an additional measure. However, the Working Group agreed that it has not collected sufficient data to develop a meaningful answer to that question, and agreed not to develop any recommendation with regard to additional mandatory RPMs equivalent to GPML.”
ACTION ITEM: Staff to work with Co-Chairs on revised language to better show how the WG addressed the question; and make the same update in the Additional Marketplace RPMs.

Background [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1Jw_B6xGwc-Du9dMbCGjsQnsq40NbZWgT5aC86nP9UN0/edit__;!!PtGJab4!rwVwLP-3q3-BKsVhhU54NPGa66VEZOjD4DhFkmxnp4_OT1vVRl37BBABpCuTeEQ9rDK4ZkRTcQ$> - Re: EPDP Recommendation #27 and the Wave 1 Report, pages 18-19:
ACTION ITEM: Kathy Kleiman to suggest revised text and post to the WG email distribution list.

Notes:

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

2. Structure of the Final Report

3. Review draft Final Report – please review only the new highlighted text in the Google docs at the links below and in the following order:

Introduction to Final Recommendations [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1aSFKsXW9Z3CfBODC_T_7kY_rCVo_pTkiWUH0cFG1Gac/edit__;!!PtGJab4!rwVwLP-3q3-BKsVhhU54NPGa66VEZOjD4DhFkmxnp4_OT1vVRl37BBABpCuTeEQ9rDJjTrXukg$>:
Unresolved recommendation text --- see: https://docs.google.com/document/d/1Re1gmf1qbfl969fILQYQjhvGQdH2fBr500-V0o-bicw/edit [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1Re1gmf1qbfl969fILQYQjhvGQdH2fBr500-V0o-bicw/edit__;!!PtGJab4!rwVwLP-3q3-BKsVhhU54NPGa66VEZOjD4DhFkmxnp4_OT1vVRl37BBABpCuTeEQ9rDKorblTBg$>
a. Revised URS Recommendation #9 and Converted Individual Proposal #34 – pages 1-6

Discussion:
-- Question re: "If a translation is ordered . . . "  Should we insert "by the URS Examiner" after "ordered" to be clear?
-- How do we reconcile point (a) in this draft recommendation with the fact that providers do not presently query the registrar for the language of the registration agreement?  It seems clear that this draft recommendation was based on a presupposition that this (RA language) would be known.  (That is, the "to be potentially converted" proposal 34)

-- It’s not a choice between the two because one integrates the other.
-- Providers can only guess taking into account some facts.
-- At minimum, the text on screen at "Such guidance should... will..." needs to be a "may" (instead of "should" and "will").
-- Note from the context in Rec 9:  “The language in the location of the privacy or proxy service may be different from the language of the Respondent.”
-- Two different approaches: 1) changing the rules 2) providing additional guidance for examiners.
-- FORUM: Need to have up front before we get a response from the registrant we need to know the language to translate the notice into.  The other issue with respect to not knowing what language to use before the respondent responds we may not have an examiner who speaks the language to take the case.  We are seeking the identity of the registrant, but they don’t have the language of the registration agreement.  Re: ordering a translation – that will add time to the process.  Need to have language on who will order that.  It will require costs and time.  System is highly automated so this would be a significant change.
-- Question re: "If a translation is ordered . . . "  in #34 -- Should we insert "by the URS Examiner" after "ordered" to be clear?
@Renee -- Thanks for clarification who/how this would be ordered.
-- FORUM: Recommendation #9 is what we are doing now. Recommendation from Individual Proposal #34 would add some complexities.
-- I guess the question comes down to whether it’s easier to determine predominant language or whether it is easier to determine the language of a registration agreement
And which one of those is better for the parties.  I would think language of registration agreement is more definitive and makes URS consistent with UDRP.
-- And to your question Griffin, the language of the RA is far easier to determine vs guessing what language someone registering a domain name sitting somewhere in the world using some service somewhere, speaks...
-- For that last reason Renee noted, registration agreement language is better - takes away the need to make a subjective call.
-- Ultimately this is left to a string of guess versus clarity.  The former is where we are when we are looking at a proxy service, the latter is when we can discern the language.  It is the registrar who would know the language because it manages the contract with the registrant.
-- Also noting the notice of complaint issue, we should change that to English and language of registration agreement as well for consistency.
-- If a registrant has entered into a contract consisting of language in Language X, it seems fair to provide them URS notice in Language X.
-- Question to WIPO: Brian, do you experience difficulties getting the answer to the "language of the registration agreement" question?  Answer: It is rare; sometimes we don’t hear from the registrant at all.  When we have difficulty it is pretty rare.  Most registrars have standard processing.  It’s usually not a matter of being unable to identify the language, but because the contact information isn’t up to date.
-- Can we know in advance what language a registration will be in for any given registrar? Or do some registrars use different languages for different registrants? If the former, I wonder if we can propose a web page where all registrars’ registration agreements / language is posted which providers can simply reference to make this determination without needing to confirm with every registrar in every case.
-- When in doubt, language of agreement should hold.  That said, guidance is that, correct? Guidance and not a requirement.

-- The RA language makes sense, the place of residence/registration not so much so. (Says a native EN speaker living in a country with the official languages FR/NL/DE).
-- Not just the way WIPO does things, would also presumably be the way Forum and ADNDRC do things for the UDRP.
-- There are some reference to WIPO processes, but WIPO is not a URS provider but a UDRP provider.  We have the concept of the rules and the guidance.  We are talking about the rules we are talking about the URS rules.  When we talk about guidance we shift away from the provider we are talking more about the substance.
-- But if a matter is locked at the Registry level, a registrar feels they don't have an obligation to provide the information.
-- Just bc they “feel” something is not relevant, the URS technical requirements already require registrars to engage if certain info cannot be obtained from the registry.
-- And if we make it clear in the rules that registrars have this obligation then they have it.
-- Yes - the RA language makes sense, the place of residence/registration not so much so. (Says a native EN speaker living in a country with the official languages FR/NL/DE).
-- It feels like we are coalescing around a small adjustment to the process in the interests of clarity and due process.
-- It seems like we are coalescing around Individual Proposal #34.  Suggest that if anyone in the WG has any concerns or is favoring Rec #9 it would be good to hear why.
-- I understand there may be some burden but URS providers already do much of this process for the UDRP side so they know how to do it.
-- Also to note that I do believe if we go this route we should also amend the other rec on notice of complaint to make it consistent.
-- Seems that if the provider is to reach out to the registry, it seems feasible that the provider could be reaching out to the registrar to ask about the identity of the registrant and the language of the registration agreement.
-- Note that we definitely want URS providers involved in IRT to make sure we get the implementation of this right.
-- From FORUM: We would need to let the expectation be known that we have to reach out to the registrar.  We already have to reach out to the registry.  Would be outreach steps unless we could get the registry to get the information from the registrar.
-- If Provider reaches out to registrar and registry simultaneously from the outset to get necessary info and seek registry lock I don’t see how that would introduce delay except in cases where either party is going to fail to respond timely anyway
Renee- why not just do both Rr and Ry outreach simultaneously?
(If we adopt this approach) .
-- Is there a reason why you have to get the registrant contact info from the Ry?  Couldn't you go straight to the Rr for this at same time as asking for the language?
-- If we change this to the language of the registration agreement FORUM is okay with that.  It’s not that complicated but it can be.
-- This proposal would also change URS procedure #9 and the provider wouldn’t have to translate into the predominant language.
-- Would also get rid of 4.2: Language of Proceedings: The URS Procedure Paragraph 4.2 specifies the languages in which the Notice of Complaint shall be transmitted. (a) The Complaint shall be submitted in English. (b) The Response may be provided in English, or in one of the
languages used for the Notice of Complaint. 10 (c) The Examiner appointed shall be fluent in English and in the language of the Response and will determine in which language
to issue its Determination, in its sole discretion. (d) In the absence of a Response, the language of the Determination shall be English. (e) The Provider is not responsible for translating any documents other than the Notice of Complaint.
-- Could say that if the provider reaches out to the registrar but doesn’t receive a response that the default language will be English.
-- All of this is subject to the examiner to determine otherwise re language.
-- To take all of the stuff about privacy proxie, etc. that gets taken out of the section that deals with the provider and the notice.  If we know the language of the registration agreement then all of the other stuff is no longer relevant.
-- For the Implementation Guidance for examiners we could keep that.
-- If we go down this path, we’ll need to look at other provisions that deal with language.
-- Perhaps staff can flag those other language related recs and insert some revisions to make consistent with this approach.
-- Current language on language of complaint: “The Working Group recommends that it be mandatory for URS Providers to comply with URS Procedure para 4.2 and para 4.3 and transmit the Notice of Complaint to the Respondent, with an accompanying translation in the predominant language used in the Registrant’s country or territory, via email, fax, and postal mail.”
-- Not talking about translating the complaint.  The notice of the complaint.
-- Note that in future data should be collected on whether the registrant understands the language of the notice of complaint.

ACTION ITEM: Staff will revise the language of the recommendation arising from converted URS Individual Proposal per the WG discussion and the related recommendation relating to language concerning the notice of complaint.

b. New Draft WG Discussion Language on ALP – pages 6-7

Discussion:
-- Speaking about limited input from Registry Operators - the numbers of GEO applicants were extremely limited (and CORE had a large part of that).
-- This final para language seems ok to me and suggests appropriate flexibility while urging timeliness etc.
-- Regardless, "will" should be changed to "should".
-- Change to “The WG expects that...will be published”.
-- Comment that if this is a defined term / existing document, that we use the official title:  "published process documentation and review guidelines".
-- Do you really need / want to limit it to "GEO TLDs" in the final sentence?
-- If the IRT takes it up as a work item, it could  add a small measure of predictability to a process that has absolutely none right now.  Including it seems harmless.  No consensus call needed since it is not a Recommendation.
-- The WG accepts the text to be included in the Final Report.

c. New Contextual Language About GIs in TMCH – pages 9-10

Discussion:
-- The term should be geographical indications (not indicators).
-- Suggestion: "entered into the TMCH" is a hot button. "entered into a database maintained by the TMCH operator" avoids that.
-- Go one step further and refer to "an additional database" or "ancillary database”.
-- Staff will check as to whether it is “TMCH operator” or “TMCH provider”.
-- The WG accepts the text as modified to be included in the Final Report.

Annex B – Charter Questions [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1hmF5eKnuwjv-Sk4cWfTkM_omKpr0kLH2SSUjAnkFWII/edit__;!!PtGJab4!rwVwLP-3q3-BKsVhhU54NPGa66VEZOjD4DhFkmxnp4_OT1vVRl37BBABpCuTeEQ9rDISwo5qcw$>

-- This is not new text in that the WG has seen it in the WG discussion in the public comment analysis summary.

Discussion:
-- Re: “In reviewing the public comment, the Working Group noted that several commenters expressed the desire for the Globally Protected Mark List (GPML) as an additional measure. However, the Working Group agreed that it has not collected sufficient data to develop a meaningful answer to that question, and agreed not to develop any recommendation with regard to additional mandatory RPMs equivalent to GPML.”
-- Question: Why is this included in the Final Report?  Answer: The WG was asked another question related to the protected marks list: “How, and to what extent, does use of Protected Marks Lists (e.g. blocking services) affect the utilization of other RPMs, especially Sunrise registrations?”

ACTION ITEM: Staff to work with Co-Chairs on revised language to better show how the WG addressed the question.  Make the same update in the Additional Marketplace RPMs.

Additional Marketplace RPMs [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1Kf-on75LuwwjI-qfvx5YwX5q5ztauB3ivGD3rInJu4Q/edit__;!!PtGJab4!rwVwLP-3q3-BKsVhhU54NPGa66VEZOjD4DhFkmxnp4_OT1vVRl37BBABpCuTeEQ9rDIE2XKEow$>

See action item above.

Background [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1Jw_B6xGwc-Du9dMbCGjsQnsq40NbZWgT5aC86nP9UN0/edit__;!!PtGJab4!rwVwLP-3q3-BKsVhhU54NPGa66VEZOjD4DhFkmxnp4_OT1vVRl37BBABpCuTeEQ9rDK4ZkRTcQ$>

Re: EPDP Recommendation #27 and the Wave 1 Report, pages 18-19:

ACTION ITEM: Kathy Kleiman to suggest revised text and post to the WG email distribution list.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-rpm-wg/attachments/20201013/e0358d75/attachment-0001.html>