2018-07-18 Sub Team for URS Documents

Notes/ Action Items

Action Items:

1. Brian to work with staff to contact registry operators whose gTLDs saw the most URS complaints for feedback about their qualitative experiences with the notice requirements (based on list of 25 gTLDs with the most URS complaints as of December 2017)
2. Brian to coordinate with staff regarding alignment with the other Sub Teams and reporting back to the full WG
3. Staff to clean up topics table based on today's discussion and provide list of issues/topics/points for Sub Team consideration and (as appropriate) further consideration
4. Staff to provide case numbers for Sub Team members to review more deeply (for the Claims Denied cases) - Zak M. and David M. volunteered
5. Staff to circle back with David M. on the de novo review cases
6. Staff to find out if there is decoding software available that can be used to read the coded portion of a SMD file (or if the only way is to obtain the private key from the TMCH)
7. Staff to complete action items on additional background information as noted in Column 4 of the URS Consolidated Document

Notes:

• Note on Action Item from 11 July: The Docs Sub Team believes it has adequately identified the available data sources for all the topics and questions raised.

• Objective of this call: based on review of data we have, determine what (if any) potential recommendations and other observations we will report for the full WG to consider. Important to remember that full discussion and development of policy recommendations must happen at the WG level.

• Question: On responses from Providers' & Practitioners' survey results - do we just catalogue them (as received) or should we do more to facilitate coordination across the Sub Teams and for discussion by the full WG?

• Approach: walk through each section (especially Column 4 and where there is reference to the Provider or Practitioner survey responses), to meet objective of the call as stated (e.g. ask if the Sub Team sees any issues or possible discussion proposals based on the survey responses)

Discussion:

A. THE COMPLAINT:

• Standing re: types of marks - this raises a fundamental question as to whether the nature of the mark (since trademark rights are required for standing) is something that is within scope for URS review.

SUB TEAM RECOMMENDATION - highlight that question has been raised as to whether the standing requirement for URS should be changed in view of available data about types of marks.

• Proof of use via SMD files - practitioners' survey results seem to indicate no problems have been caused (SMD files are adequate), but a few respondents and WG members have raised questions about this.

QUESTION: Is there decoding software that can "open" the coded (non-human readable) portions of the SMD file? Is it only readable with the private key obtainable only from the TMCH?

• Time frames - this has implications on the filing as well as receiving party. Responses were mostly filed within the 6-months timeframe (most within the initial 14 days).

QUESTION: Is the problem not so much length of each time frame per se, but the possible overlapping/duplicative mechanisms for review and appeal?

• Word limits - more practitioners agreed that these are adequate, but a number also disagreed.

B. THE NOTICE:

• Providers Sub Team has been discussing the differences in practice amongst the various providers. No need to duplicate that effort - but Docs Sub Team notes the need to have a coordinated discussion of any notice issues at the WG level.

• From Practitioners survey - Most practitioners who responded noted no issues with notice, with one comment on privacy/proxy services noting that FORUM was able to assist. Many of the practitioners represented complainants.

• Locking of domain within 24 hours - providers have indicated  no serious difficulties, including with communicating with registry operators, though there are occasional inconsistencies and problems (for specific reasons documented in the provider survey responses). No issues were raised from the practitioners.

C. THE RESPONSE:

• Refer to staff compilation summary and data tables for the data on how many responses were filed, in which time frame, and their final determination.

QUESTION: of the 4% (between 23-27%) of the 827 cases where a response was filed after the 14-day period but within 6 months, is it possible to see exactly when they were filed? Reply: This will require a further look into the data as we don't currently have the actual cases extracted.

SUB TEAM RECOMMENDATION: No further research required at the moment, given the data staff has already compiled.

• Cases involving 15 or more domains: not many.

SUB TEAM RECOMMENDATION: The current data does not allow for any sound policy conclusion.

D. STANDARD OF PROOF

• Is URS being used for its purpose: Practitioners survey results - most either agreed or strongly agreed.

• Meeting "clear and convincing" standard - practitioners split on whether guidance should be provided to examiners on how to determine if this has been met. Over half the practitioners felt the standard is appropriate (and felt it was adequate as is), but a few thought it was too high (and should be lowered).

SUB TEAM RECOMMENDATION: Some rudimentary guidance as to what constitutes "clear and convincing" (in view of differing laws around the world) may be useful. Based on the data reviewed, the Sub Team does not believe that changing the standard is necessary.

• Analysis of the 59 Claims Denied cases: work in progress; staff focus continues to be on trying to see if grounds/defenses other than those listed in URS sections 5.7 and 5.8 were the reason.