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Implementation Recommendation TeamSpecial Trademark Issues Review TeamFormation & work of RC-IOC DTGNSO Council responses to Board requests concerning IGO protectionsBoard request for GNSO to consider defensive registrationsGNSO feedback on Whois Review Team Final ReportDevelopment of TMCH "strawman" proposal [may be more relevant to consider as a possible model?]Correspondence on TMCH "strawman" proposalResponse to Board request on "closed generics"Correspondence on String SimilarityGNSO Council comments on ATRT2Board request concerning .brand RA, specification 13
DateMar-09Oct-09Aug-11Mar-12Apr-12Jun-12Nov-12Dec-12Feb-13Sep-13Dec-13Apr-14
What triggered the effort?The Implementation Recommendation Team (IRT) was formed by ICANN's Intellectual Property Constituency in accordance with the 6 March 2009 ICANN Board resolution (http://www.icann.org/en/minutes/resolutions-06mar09.htm). The resolution was intended to facilitate solutions for challenges faced by trademark holders in the implementation of new gTLDs, which had been identified as an Overarching Issue in the New gTLD Program.On 12 October 2009, the ICANN Board sent a letter to the GNSO requesting its review of the policy implications of certain trademark protection mechanisms proposed for the New gTLD Program, as included in the Draft Applicant Guidebook at the time and accompanying memoranda. Specifically, the Board Letter requested that the GNSO provide input on whether it approves the proposed staff model, or, in the alternative, propose an alternative that is equivalent or more effective and implementable. The ICANN Board had requested policy advice from the GNSO Council and the GAC on whether special protections should be afforded to the RCRC, IOC and/or IGOs. Specifically, in its Singapore resolution in June 2011, the Board had authorized the President and CEO to implement the New gTLD Program "which includes the following elements: "the 30 May 2011 version of the Applicant Guidebook, subject to the revisions agreed to with the GAC on 19 June 2011, including: ...(b) incorporation of text concerning protection for specific requested Red Cross and IOC names for the top level only during the initial application round, until the GNSO and GAC develop policy advice based on the global public interest....." In September 2011, the GAC sent a proposal to the GNSO for the granting of second level protections based upon the protections afforded to IOC/RCRC at the top level. In the same month, section 2.2.1.2.3 was added to the latest version of the new gTLD Applicant Guidebook, dated 19 September 2011. In October 2011, the GNSO Council decided to create a small group that would constitute a drafting team to develop a response to the GAC. The resulting IOC/RCRC Drafting Team crafted a set of recommendations for protecting the IOC/RCRC names at the top level that were adopted by the GNSO Council, though ultimately not by the Board. December 2011 letter from a group of IGOs to ICANN Board expressing concerns of the IGO community regarding the registration and use of IGO names in the DNS. The ICANN Board then wrote to the GAC and GNSO in March 2012: 'In light of the GAC's role under the ICANN bylaws to provide advice to the Board "on matters where there may be an interaction between ICANN's policies and various laws and international agreements," and because of the relationship between the IGOs' request and the work ongoing regarding the Red Cross/IOC, as well as the past GNSO work regarding the Reserved Name List, the ICANN Board formally requests that the GAC and GNSO provide policy advice to ICANN regarding the IGOs' request. Policy advice on the expansion of protections will inform ICANN in providing a meaningful response to the IGOs'. ICANN received comment describing an apparent need to submit gTLD applications for defensive purposes to protect established legal rights. In response the New gTLD Program Committee resolved not to direct 'any changes to the Applicant Guidebook to address defensive gTLD applications at this time, the New gTLD Program Committee directs staff to provide a briefing paper on the topic of defensive registrations at the second level and requests the GNSO to consider whether additional work on defensive registrations at the second level should be undertaken'.Request from the ICANN Board to provide input on the Whois Review Team Final Report ('the Board encourages public input on the Final Report and Recommendations, and requests that the ASO, ccNSO, GNSO, ALAC, GAC, and SSAC provide input to the Board by 31 August 2012').The Trademark Clearinghouse facilitates the protection of trademark rights during the initial allocation and registration periods for domain names in new gTLDs. All new gTLD registries are required to use TMCH data to ensure that a set of mandatory trademark rights protection mechanisms are applied to all new domain registrations occurring in at least the first 90 days of domain registration. These mechanisms were described in the AGB. Following discussions at the Toronto meeting in October 2012, ICANN met with a group of stakeholder representatives to complete implementation discussions on the TMCH and associated RPMs, including discussion of a proposal by the IPC and BC. The discussions resulted in a proposed “strawman” solution that was intended to balance and address the concerns of affected stakeholders. The ICANN CEO sought policy guidance from the GNSO Council on two items as part of the next steps for the implementation of the TMCH, namely, the Strawman Proposal and the IPC/BC proposal for limited defensive registrations. Each of these documents were also posted for public comment (see:http://www.icann.org/en/news/public-comment/tmch-strawman-30nov12-en.htm) to allow the ICANN community the opportunity to comment on these proposals. Specifically, policy guidance was sought on the portion that pertains to the expansion of the scope of the trademark claims, although comments on any aspect of the Strawman Model were welcome in the event the Council is interested in broadening its response.At its 2 February 2013 meeting, the ICANN Board’s New gTLD Program Committee adopted a resolution requesting the GNSO to provide guidance on the issue of "closed generic" TLDs if the GNSO wishes to provide such guidance. The Committee also requested that any such guidance be provided by 7 March 2013, coincident with the close of the public comment forum on this issue.During the GNSO Council meeting on 5 September 2013, the Council discussed issues associated with the string confusion decisions that had been made recently (e.g. relating to plural and singular versions of the same term and seemingly conflicting decisions on identical strings). As ICANN GDD president Akram Atallah had intimated in an interview that if there were conflicting decisions, it would be for the GNSO community to assist, the GNSO Council received an update on the issue that included references to previous relevant GNSO advice, and discussed potential future activity to be initiated by the Council.A public comment forum was opened for the ATRT2 to obtain community input on its Draft Report & Recommendations and Correction Issued 7 November 2013, with the goal of producing a Final Report by 31 December 2013.In early April 2014 the NGPC wrote to the GNSO Council noting: “As you know, on 26 March 2014, the NGPC took action to approve Specification 13 to the Registry Agreement <http://www.icann.org/en/groups/board/documents/resolutions-¬‐new-¬‐gtld-¬‐26mar14-¬‐en.htm#1.a>. Specification 13 provides limited accommodations to registry operators of TLDs that qualify as “.Brand TLDs.” As many as one-¬‐ third of all new gTLD applications might qualify as .Brand TLDs. Specification 13 reflects months of discussions on many key issues raised by the community during the public comment forum and other community outreach sessions. At the same meeting, the NGPC also approved the incorporation of an additional clause into Specification 13, with implementation not being effective until 45 days from the publication of the resolution. This additional clause will allow a registry operator of a .Brand TLD to designate no more than three ICANN accredited registrars at any point in time to serve as the exclusive registrar(s) for the TLD. Implementation of this additional clause is being delayed for a time in respect of the GNSO policy development process by providing the GNSO Council an opportunity to advise ICANN as to whether the GNSO Council believes that this additional clause is inconsistent with the letter and intent of GNSO Policy Recommendation 19 on the Introduction of New Generic Top-¬‐Level Domains. In case additional time for review is necessary beyond the 45 days, please advise the NGPC along with an explanation as to why this additional time is required.”
Who framed the issue or how was the issue framed?Request from the ICANN Board (http://www.icann.org/en/minutes/resolutions-06mar09.htm) Letter from the ICANN Board (http://gnso.icann.org/correspondence/beckstrom-to-gnso-council-12oct09-en.pdf) ICANN Board Resolution (http://www.icann.org/en/groups/board/documents/resolutions-20jun11-en.htm) GAC Proposal to the GNSO (http://gnso.icann.org/correspondence/dryden-to-van-gelder-red-cross-14sep11-en.pdf) Letter from the ICANN Board (http://www.icann.org/en/news/correspondence/crocker-beckstrom-to-dryden-van-gelder-11mar12-en.pdf)ICANN Board Resolution (http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-10apr12-en.htm) / Staff Briefing Paper (http://gnso.icann.org/en/correspondence/defensive-registrations-briefing-paper-04jun12-en.pdf)ICANN Board Resolution (http://www.icann.org/en/groups/board/documents/resolutions-23jun12-en.htm#5) / Whois Review Team Final Report (http://www.icann.org/en/about/aoc-review/whois/final-report-11may12-en)Stakeholder meetings facilitated by ICANN's CEO (http://blog.icann.org/2012/11/building-a-secure-and-reliable-trademark-clearinghouse/) following ongoing community discussions about TMCH implementationLetter from ICANN CEO (http://gnso.icann.org/en/correspondence/chehade-to-robinson-04dec12-en.pdf)ICANN Board NGPC Resolution (http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-02feb13-en.htm)GNSO Council Meeting of 5 September 2013 (http://gnso.icann.org/en/meetings/transcript-council-05sep13-en.pdf)Public Comment Forum and Draft Report (https://www.icann.org/en/news/public-comment/atrt2-recommendations-21oct13-en.htm)Letter from ICANN Board NGPC to GNSO Council (http://gnso.icann.org/en/correspondence/chalaby-to-robinson-03apr14-en.pdf)
Methodology for selecting membershipApplications for membership were solicited from amongst the ICANN community (see for example http://gnso.icann.org/mailing-lists/archives/council/msg06420.html). The Board resolution had specified that the IPC should consult with staff to convene “an Implementation Recommendation Team comprised of an internationally diverse group of persons with knowledge, expertise, and experience in the fields of trademark, consumer protection, or competition law, and the interplay of trademarks and the domain name system to develop and propose solutions to the overarching issue of trademark protection in connection with the introduction of new gTLDs”.The GNSO Council resolution determined the make-up of the STI. Each identified group was allowed to make their own determination on who would serve as their representative(s).Several GNSO Councilors first volunteered for the DT, which was however not limited to the Council. The DT ultimately comprised Councilors and community members as well as a few representatives from the two organizations concerned.GNSO Council members collaborated to draft a response.N/ACouncil member volunteers.Invitations to stakeholder groups (for the meetings)A couple of Council members volunteered to develop a first draft for Council reviewN.A.N.A.One Council member volunteered to prepare a draft response based on Council discussion and input.One Council member volunteered to take the lead iin gathering information and input on this topic in order to draft motion for Council consideration.
Composition of the group (which interests were represented)The team was selected by the IPC and was comprised of 18 members and two alternates. The Board resolution had specified that 'the Implementation Recommendation Team will be comprised principally from the organizations and persons that proposed such solutions in the public comment period on the first draft Applicant Guidebook'. “A GNSO Review Team will be comprised of representatives designated as follows: the Registrar and Registry Stakeholder Groups with two (2) representatives each, the Commercial Stakeholder Groups and the Non-Commercial Stakeholder Groups with four (4) representatives each, At-Large with one (1) representative, one representative from the Nominating Committee Appointees and the Government Advisory Committee (GAC) with one (1) observer. Alternate members may participate in case of absence of the designated representatives”.All GNSO SGs & constituencies except the Registrars SG were represented, as were the ALAC and the Red Cross. See https://community.icann.org/x/JRoQAg Conversations took place on the GNSO Council mailing list (publicly archived, but posting restricted to GNSO Council members).N/AThe members of the Council who participated in this review were Wendy Seltzer, Thomas Rickert, Wolf-Ulrich Knoben, Jeff Neuman, and Brian WinterfeldtBC, IPC, ISPCP, NCSG, RySG, RrSG & ALACConversations took place on the GNSO Council mailing list (publicly archived, but posting restricted to GNSO Council members).Based on Council discussion, draft letter was circulated by GNSO Council Chair to Council list for review and input.Based on Council discussion, draft letter was circulated by GNSO Council Chair to Council list for review and inputConversations took place on the GNSO Council mailing list (publicly archived, but posting restricted to GNSO Council members).Conversations took place on the GNSO Council mailing list (publicly archived, but posting restricted to GNSO Council members). Input was also received from the Brand Registry Group.
What steps / procedures were followed (methodology)The Board resolution specified that 'the Implementation Recommendation Team would use the solutions proposed in the public comments as its starting point for development'. The team participated in numerous teleconferences, two two-day face-to-face meetings, and one full-day face-to-face consultations with remote participation via teleconference with various interest groups resulting in draft recommendations for several proposed solutions.The GNSO Council resolution creating the STI provided that: 1) Each of the Stakeholder Groups will solicit from their members their initial position statements on the questions and issues raised by the ICANN Board letter and the ICANN Staff proposed models for the implementation of the Trademark Clearinghouse and Uniform Rapid Suspension model, and will deliver their initial position statements on November 4, and with final position statements to be delivered by November 6, 2009; 2) Such position statements will be summarized by ICANN Staff and distributed to the GNSO Review Team to evaluate whether a consensus can be reached on the ICANN Staff implementation models or other proposals for the protection of trademarks in the New gTLD Program; and 3) The GNSO Review Team will conduct its analysis, identify those areas where consensus has already been reached, and seek to develop consensus on those issues for which consensus could not be determined. (The assistance of members of the IRT in answering questions about the IP Clearinghouse and Uniform Rapid Suspension System recommendations may be useful to this work. The GNSO Council requests that members of the IRT who worked on those recommendations be available to answer any such questions that may arise), and 4) The GNSO Review Team will provide a final report to the GNSO Council on or before the GNSO council's meeting in late November, 2009. The DT held weekly meetings and collaborated on a wiki as well as the publicly archived mailing list.Redrafting of proposed response until no objections were received to sending it ('Absent any further discussion on this item, please note that I am sending the attached letter to Steve and Rod today.').The GNSO Council was reminded on several occasions of this request but formally decided during its meeting on 10 October 2013 to not undertake any further action in relation to this item.The GNSO Council constituted a small team of Council members to determine where points of consensus existed from within the GNSO’s constituencies. . As part of their review process, and with the assistance and support of ICANN’s Senior Policy Councilor, Margie Milam, the small team reviewed feedback on the WHOIS Review Team Final Report that has already been submitted to the Board of Directors. The small team also solicited additional feedback from the Council itself and the individual GNSO stakeholder groups and constituencies.Discussions and F2F meetingsFollowing the circulation of the first draft, a number of comments were made which were incorporated in the letter. In the end it was determined that a majority of Council members supported the letter which was reflected in the letter.The Council discussed the issue of “closed generic” TLDs at its 14 February 2013 meeting and how to respond to the New gTLD Program Committee’s request. A letter was drafted noting “the view of the GNSO Council that, given the relatively short timeframe, it is not possible for the GNSO Council to provide policy guidance on this issue with the appropriate levels of consideration and consultation. Nevertheless, although the Council is not in a position to provide formal policy guidance on this issue at this time, the Council has encouraged the GNSO Stakeholder Groups and Constituencies to share their views on this topic through the relevant public comment forum.” Draft letter circulated to the Council mailing list for input and review.Draft letter circulated to the Council mailing list for input and review. Various iterations of letter were circulated until all Council members were satisfied with the content.Discussion during Council meeting and mailing list.
Opportunities for public comment / input (and if so, how)Public comment was solicited on both the Initial Report (http://www.icann.org/en/news/public-comment/irtdr-24apr09-en.htm) as well as Final Report (http://www.icann.org/en/news/public-comment/irt-report-26may09-en.htm)Public comment prior to Board consideration (http://www.icann.org/en/news/public-comment/sti-17dec09-en.htm)Public comment forum prior to GNSO Council consideration (although the forum was still open at the first occasion the GNSO Council was asked to consider the proposal): http://www.icann.org/en/news/public-comment/ioc-rcrc-proposal-02mar12-en.htmN/AN/ANot on the Council response itself (public input was sought on the same report by the ICANN Board)Public comment forum on the proposed "strawman" solution: http://www.icann.org/en/news/public-comment/tmch-strawman-30nov12-en.htmNot on the Council response itself (public input was sought on the same questions via a public comment forum)Not on the Council response itself (public input was sought on the same questions via a public comment forum)NoNot on the Council response itself (public input was also sought on the via a public comment forum)No
Time constraints / threatsThe Board resolution dictated that 'The board further requests that the Implementation Recommendation Team (i) distribute its draft report by 24 April 2009 to interested members of the community for comment, and (ii) produce a final report to be published no later than 24 May 2009 for consideration by the ICANN community at the Sydney meeting'.The Board requested the GNSO to complete this work in two months from the publication date of the letter (14 December 2009). If no outcome was preduced, it was presumed (or stated?) that the staff proposal would be implelmented, which no stakeholders wanted.Pendency of the new gTLD application period ('Due to the pendency of the application period (which is currently scheduled to close in on April 12), this public comment forum is being treated as a matter of urgency in order to present a solution for consideration by the ICANN Board as its Costa Rica meeting'.)The letter was received during the application period for new gTLDs, which closed on 12 April 2012. This did not allow for a substantive response before that date.Input requested by 31 August 2012There had been concerns expressed by the community over TMCH implementation timing and ongoing issues; the "strawman" solution was developed after the TMCH provider had been selected by ICANN.Input requested by 7 March 201313 December 2013 - deadline for commentsadditional clause into Specification 13, with implementation not being effective until 45 days from the publication of the resolution (26 March 2014)
Duration / what time it took completeThe Initial Report was posted for public comment on 24 April 2009. The Final Report was published on 29 May 2009 .Total duration approx. 3 months.Final Report was published on 11 December 2009 - Adoption by the GNSO Council on 17 December 2009. (approx. 3 months)Adoption of recommendations by GNSO Council on 26 March 2012 (approx. 8 months)Letter was sent to ICANN CEO and ICANN Board on 26 March 2012 (approx. 2 weeks)Decision on 10 October 2013 to not undertake any further action (approx. 18 months)Letter was submitted on 7 November 2012 (approx. 5 months)Not counting prior community discussions, less than two months elapsed between the ICANN Toronto meeting and the opening of the public comment forum; less than two months between the close of the public comment forum and announcement of adoption.Letter was submitted on 28 February 2013 (approx 3 months)Letter was submitted on 7 March 2013 (approx 1 month)Letter was submitted on 18 September 2013Letter was submitted on 13 December 2013 (approx. 1,5 months)Letter was sent on 3 April 2014; the Council voted on a motion at its meeting on 8 May 2014 (just over 1 month)
Nature of the outcome (e.g. letter, report)Initial Report & Final ReportFinal ReportRecommendationsLetter (http://gnso.icann.org/correspondence/gnso-to-board-igo-names-26mar12-en.pdf) Decision (http://gnso.icann.org/en/meetings/minutes-council-10oct13-en.htm) Letter to the ICANN Board (http://gnso.icann.org/en/correspondence/robinson-to-icann-board-07nov12-en.pdf)Adoption of some of the implementation-related aspects of the "strawman" solution following analysis of public comments received (http://newgtlds.icann.org/en/about/trademark-clearinghouse/strawman-solution-memo-20mar13-en.pdf) Letter to ICANN CEO (http://gnso.icann.org/en/correspondence/robinson-to-chehade-28feb13-en.pdf)Letter to the ICANN Board (http://gnso.icann.org/en/correspondence/robinson-to-crocker-chalaby-07mar13-en.pdf )Letter to the ICANN Board NGPC (http://gnso.icann.org/en/correspondence/robinson-to-crocker-chalaby-18sep13-en.pdf)Letter to the ATRT2 (http://gnso.icann.org/en/correspondence/council-comments-atrt2-recommendations-13dec13-en.pdf)Resolution passed by GNSO Council; response letter to NGPC [pending @8May].
Impact / Response(See STI)Resolved (2010.03.12.19), ICANN staff shall analyze public comments on the Clearinghouse proposal and develop a final version to be included in version 4 of the Draft Applicant Guidebook.Resolved (2012.04.10.NG5), the New gTLD Program Committee chooses to not change the Applicant Guidebook at this time. This effort did act as a catylst for the GNSO Council to request an Issue Report.In April 2012 the GNSO Council requested an Issue Report preceding a possible PDP on protections for international organizations. A PDP was initiated on Oct 2012, concluding Apr 2014Response from NGPC in October 2013 (http://gnso.icann.org/en/correspondence/chalaby-to-robinson-24oct13-en.pdf)TBD
Strong PointsThe threat of the default implementation forced parties to truly negotiate in good faith. Compromises were hammered out.CG: Thorough vetting of the issues.Broad participation & thorough vetting of the issues.Arguably the first instance of P/I development led by a facilitator (Fadi Chehade).
Weak PointsSome of the compromises were later disavowed, resulting in significant problems, and in fact directly leading to the P&I discussions and WG.CG: It took longer than anticipated, maybe unavoidably.No GAC direct participation.Composition of the group not balanced and although remote participation was required, was poorly implemented.
Sourceshttp://gnso.icann.org/en/group-activities/inactive/2009/trademark-protection-irt (April 2009) http://gnso.icann.org/en/group-activities/inactive/2010/stihttp://gnso.icann.org/en/group-activities/active/ioc-rcrc http://gnso.icann.org/correspondence/gnso-to-board-igo-names-26mar12-en.pdf http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-10apr12-en.htm http://gnso.icann.org/en/correspondence/robinson-to-icann-board-07nov12-en.pdfhttp://gnso.icann.org/en/correspondence/chehade-to-robinson-04dec12-en.pdfhttp://gnso.icann.org/en/correspondence/council-comments-atrt2-recommendations-13dec13-en.pdf