2018-10-10 Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP WG

Notes/ Action Items

Chair: Kathy Kleiman

1.  Review Agenda/Statements of Interest Updates: No updates

2.   Discussion of Individual URS Proposals (See: https://community.icann.org/x/aACNBQ)

1. George Kirikos (#5): https://community.icann.org/download/attachments/93126760/URS-Proposal-5.pdf?api=v2

Discussion:

-- Statute of limitations is based on known or should have known.

-- Question: How does this proposal deal with issues of continuing harm?  How to deal with the issue of known or should have known?

-- Worth getting public comments on.

-- Put into the Initial Report for discussion.  There is support for and against.

-- There has been no survey of national law.

-- This would create an exception that could blow a hole in the policy.

-- Worthy for further review and discussion.

-- Needs to be put on the table for discussion.

-- Ripe for discussion.

Response:

-- Didn't make a latches proposal because it is more complicated to prove.

-- Useful to survey national law.

-- Re: "submarine registration" it is a possibility but they would have to be paying renewal costs in the mean time.

-- Still a recourse to the courts for all other disputes.

2. George Kirikos (#7): https://community.icann.org/download/attachments/93126760/URS-Proposal-7.pdf?api=v2

Discussion:

-- Support including the proposal in the Initial Report..

-- No legal contact right now in the WHOIS.  Requirement for everyone is high burden.

-- Revise proposal to say, "If a legal contact is required then in that case..."?

-- Seems like we would be making recommendations where other parts of the community are working.

-- Think it is okay to make recommendations for other groups.

Response:

-- Isn't meant to force someone to have a legal contact if they don't want one.  It is just another means of contact in the WHOIS.

3. George Kirikos (#8): https://community.icann.org/download/attachments/93126760/URS-Proposal-8.pdf?api=v2

Discussion:

-- Don't know what this proposal does that doesn't already exist in the URS.

-- Don't know how the three days would equate to more than what they can already do.

-- The issue with actual notice not sure if you drag it out for 3 more days’ notice will be achieved.

-- Seems to be effectively a limitation period. 

-- Would increase the time (contrary to "rapid).

-- In the Sub Team analysis there was no evidence of people missing the notifications.

Response:

-- Having the additional time period would reduce incidences of default and suspensions.

-- Seems like rapid doesn't apply to bringing complaint.

-- High rate of default is evidence of the problem.

4. Marie Pattullo (staff to present on behalf of Marie) (#13): https://community.icann.org/download/attachments/93126760/URS-Proposal-13.pdf?api=v2

Discussion:

-- Good intention, but could be problematic to implement.  Could be impossible for a registrar to handle on its own.  Interested in how to overcome the technical problems.

-- Would be interested in the evidence.  Is it happening?  Does it happen often?  Check with Berry Cobb re: evidence of a losing registrant re-registering.

-- Sufficient merit for going into the Initial Report.

-- Creative proposal.  Need to distinguish implementation changes from policy challenges.

-- Costly monitoring burden on the trademark holder.

-- Strongly oppose putting out for public comment when it is impossible to implement.  Cannot distinguish between registrants even within the same registrar.

-- Seems to be unbalanced. 

Response:  Staff will convey the discussion from the transcript and the chat for Marie to respond to.

5. George Kirikos (#12): https://community.icann.org/download/attachments/93126760/URS-Proposal-12.pdf?api=v2

Discussion:

-- Strongly opposed.  Challenge: If you transfer a trademark to a new owner and they do something different with it then the clock does reset.

-- Support including it in the Initial Report.

-- In the UDRP there is a lot of ambiguity of what the creation date represents.  Ambiguity if a domain is deleted and then re-registered.  Area worthy of further discussion.

-- Interesting but needs further development.

-- It's binary -- either it exists or it does not.

Response:

-- Overriding concern is that we want to have safe harbors for when a TM is transfered.

-- Conceivably a domain name could not be fully deleted.

-- Statute of limitations would be another way to handle it.

6. George Kirikos (#18): https://community.icann.org/download/attachments/93126760/URS-Proposal-18.pdf?api=v2

Discussion:

-- Needs to be reworked.  Not sure it is universally applicable.

-- This has been extensively debated in the IGO/INGO.

-- Real problem if the policies are worded in a way that courts aren't allowing it.

-- There is no real problem here -- it is an outlier case.

-- Not sure in favor of the proposals as currently written.  There are

-- Worth getting community feedback.

Response:

-- There were at least 2 cases in the UK and also in Australia.

7. George Kirikos (#19): https://community.icann.org/download/attachments/93126760/URS-Proposal-19.pdf?api=v2

Discussion:

-- Does address the concern among some WG members that ICANN cannot decide what case a court will here.  This proposal would be able to effect how courts deal with subsequent action following URS.

-- In the URS there are multiple avenues for appeal.  The registrant does have avenues for recourse.

Response:

-- Not fair to say that there are multiple avenues for recourse in the URS since it doesn't have the same recourses as a court.

8. George Kirikos (#20): https://community.icann.org/download/attachments/93126760/URS-Proposal-20.pdf?api=v2

Discussion: See the chat.