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051040040 RPMs in all gTLDS PDP WG
Julie Bisland
32:56
Welcome to the (WG) call on (date/time). Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.
Ariel Liang
33:57
https://docs.google.com/spreadsheets/d/1QTt_m5qdzoalRDcIUED01ur-yJgODCex8bj_-aKO7fI/edit#gid=1018133708
Paul Tattersfield
40:48
Is there discussion on the concensus call or it just a vote on as is?
Paul Tattersfield
43:24
this is the full working group?
Julie Hedlund
43:47
@Paul: This is the full WG
Julie Hedlund
44:05
The question is whether it should go to a WG consensus call, as is, or modified
Paul Tattersfield
44:10
where was Kathy suggesting sending it?
Paul McGrady
44:19
@Phil & Staff, this is one where scrolling down to see who all responded to this and how.
Paul McGrady
44:28
would be helpful
Julie Hedlund
44:47
@All: The consensus call is not a formal vote. The Co-Chairs make the designation.
Kathy Kleiman
45:46
WIPO notes a concern about lack of continuity of provider operations.
Julie Hedlund
45:48
@All: This is the time for the WG to discuss whether this needs clarification, etc.
Kathy Kleiman
46:08
I recommend we lop off the no presumptive renewal and move forward the community support for formal contracts.
David McAuley (Verisign)
46:14
OK, thanks Phil
Paul Tattersfield
46:16
so it needs to go for further review before the consensus call
Kathy Kleiman
46:31
@Paul - yes
Paul Tattersfield
46:32
thanks David
Kathy Kleiman
46:51
We are the full WG - but we are doing the first review.
David McAuley (Verisign)
46:54
good question, Paul
Griffin Barnett
47:43
Hi sorry to join late…had another call run long
Kathy Kleiman
47:58
Welcome Griffin.
David McAuley (Verisign)
48:16
agree with Susan about MOU
Michael R. Graham
48:42
@Susan -- Agree -- I think we need to consider why there is a feeling that a "formal fixed-term agreement" is needed and the MoU is not sufficient. May be a simple misunderstanding or misinterpretation.
Griffin Barnett
48:48
Agree
Paul Tattersfield
49:19
Susan +1
Kathy Kleiman
51:05
@All, I'm not sure how much the Q1 offers on this... there may not be consensus on additional elements. The key seems to be changing the format of the agreement - from MoU to contract.
Michael R. Graham
51:57
My gravest concern with the proposal is the notion that Panelists should be made potentially subject to suit based on their decisions. I wonder how many panelists would remain with such a threat.
Kathy Kleiman
52:21
How would a contract with ICANN do that, Michael?
Jay Chapman
52:49
So its this discussion and then the consensus call, per Mary
Jay Chapman
53:05
it’s
Susan.Payne
53:21
@Michael, I don't see that as part of the recommendation (as written here at least), although accept that George K calls for that in his comment
David McAuley (Verisign)
53:22
Based on what Mary is saying I tend to agree with Kathy that the gravamen of what we are considering is changing an MOU to a formal contract (not sure I see a difference) and maybe whether no presumed right of renewal
Michael R. Graham
53:35
@Kathy -- not sure
Kathy Kleiman
54:02
Tx!
Susan.Payne
54:15
@Phil - but isn't the point of a public comment that if we get input that warrants additional consideration/discussion that we do it? Otherwise why did we put this out to comment at all?
Paul Tattersfield
54:17
We had the same problem in the IGO/INGO working group and it was that that led to the disaster there. No discussion of some of the options was even possible beyond a handful of minutes whereas other options got weeks of discussion
Michael R. Graham
54:19
@Susan -- several comments call for providing standards or ability to bring claims against providers or panelists -- some for "negligence" whatever that may be.
Susan.Payne
54:28
and I say that not as a supporter of this proposal
Susan.Payne
54:39
@Michael, thanks
Julie Hedlund
56:08
hand up after Kathy
Mary Wong
56:44
I should add that the staff remarks were based on the assumption that the WG will have reviewed the suggestions (including proposed modifications to a proposal) such that WG calls as are taking place now are the place for WG members to bring up possible tweaks/changes to the proposal as written (if it is to move forward to a consensus call).
Ariel Liang
56:49
Do not intend to add a wrinkle to this discussion, but the URS Recommendation 4 is related to this (about the “compliance mechanism” to ensure URS Providers, Registries, Registrars operate in accordance with the URS rules and requirements). Discussion of MoUs also took place there: https://docs.google.com/spreadsheets/d/16p196gjSt1CCXnowlWeXl_BcaggiXpoxiRSKFv1Mg18/edit#gid=208476973
Michael R. Graham
57:18
@Susan -- Seems to me that the/an appeal process provides suitable protection against negligent or irresponsible or incorrect decisions -- personal or provider liability should not be considered.
David McAuley (Verisign)
57:54
agree with Michael - Rule 12 provides appeal
Julie Hedlund
59:33
If not today at some point in a WG meeting, sometime before the consensus call
Paul Tattersfield
59:38
Several WG members have said they wish to discuss this proposal further therefore it should scheduled for a further meeting BEFORE a consensus call
Claudio DiGangi
01:00:56
agree with Paul T.
Paul Tattersfield
01:02:47
Why weren’t these individual put into a sub group?
Paul Tattersfield
01:03:05
Why weren’t these individual proposals put into a sub group?
Julie Hedlund
01:03:51
Staff is only saying that if there is WG discussion on modifications to the proposal to be a recommendation it should happen either now or in a WG meeting prior to the Consensus Call.
Paul McGrady
01:03:58
Are individual proposals transmogrified into Recommendations by surviving this process? Or is that a different transmogrification process later?
Claudio DiGangi
01:04:16
I thought the individuals proposals were submitted via a separate process and there was no WG discussion on them before the public comment. Julie is that correct?
David McAuley (Verisign)
01:04:24
I like Phil's idea of teeing this up for next call and allowing those interested in the topic to muster their thoughts - and those (like me) who at this point don't support this can do the same
Michael R. Graham
01:04:27
@Kathy -- I do not think there is sufficient WG support to move this. There is only 50.9% support in Public Comments, which does not reflect either wide community support or WG support to move this to a Proposal.
Julie Hedlund
01:04:42
@Paul: If the WG agrees to have a proposal become a recommendation.
Kathy Kleiman
01:04:49
Then let's give into Q1 answers!
David McAuley (Verisign)
01:04:57
that will also allow us to look at the rec that Ariel noted was related to this
Michael R. Graham
01:05:19
Agree with Phil and David -- This Proposal and Public Comment discussion should be moved to a separate meeting.
Claudio DiGangi
01:05:42
@Julie, were the individual proposals discussed on the merits (to informally sense consensus-levels) by the WG before they were posted for public comment?
Paul McGrady
01:06:06
@Zak - so a separate process in between this call and making it a Recommendation?
Paul Tattersfield
01:06:18
Kthy wanted to split into two parts
Paul McGrady
01:07:00
(PS: this really reveals what a bad idea Individual Proposalism really is. No idea what to do with them. Ugh.)
Claudio DiGangi
01:07:34
I am stating because Phil has said a few times that the individual proposals didn't reach "WG-level consensus level" as a recommendation so they were posted as individual proposals. I thought we just asked for individuals proposals and then posted them for public comment.
Julie Hedlund
01:07:35
@Claudio: all of the proposals were discussed so that the WG could determine which should be put forward for public comment.
Claudio DiGangi
01:07:39
agree with Paul M.
David McAuley (Verisign)
01:07:41
good point, Paul, and nice term - proposalism
Kathy Kleiman
01:07:43
Good questions, Zak!
Susan.Payne
01:07:56
@Paul M, agree, we just created confusion for ourselves
Paul Tattersfield
01:07:57
Paul +1 should have been dealt with before public comments
Mary Wong
01:08:54
To reiterate what Julie and I tried to say: assuming the WG agrees that a proposal moves forward for a consensus call, then between the conclusion of the WG’s discussion of a proposal and the consensus call, staff will collate what the WG agreements seem to be - including comparing with potentially overlapping proposals/recs - and develop text for draft final recs. At the same time, WG members can go back and consider if they can support the final proposed rec in view of the WG’s discussions and potential changes to a proposal.
Claudio DiGangi
01:09:40
@julie, I agree they were discussed to assess "should they put forward for public comment". But they were NOT discussed on the merits to see the WG agreed with the substance of the proposals. Those are two totally different things.
Kathy Kleiman
01:09:51
sounds good
Jay Chapman
01:11:41
Agree, Susan
Scott Austin
01:11:53
@ Michael and @David +1 re Rule 12. Not to mention the law firm risk management committee's assessment of an attorney panelist's increased exposure to an uncertain standard of negligence balanced against a low return on attorney time.
Justine Chew
01:12:27
50% of what?
Griffin Barnett
01:12:30
This is the working group
Mary Wong
01:12:46
As noted by others, for this PDP there are a lot of proposals that were included in the Initial Report (based on the agreement to include them rather than limit the report to prelim recommendations and any (usually few) proposals that the WG discussed but couldn’t agree on). This may be why we are having difficulty with the process and potentially not being consistent in treating all the proposals alike.
Claudio DiGangi
01:12:59
normally, a WG will discusses a proposal on the merits, so the WG has a shared understanding of what is being proposed, and the Chairs can obtain a sense of the level of support. Then a decision is made on whether to post for public comment. We didn't do that here. We just made a determination "should this proposal be posted for public comment."
Paul McGrady
01:13:19
@Griffin - understood, by "up" I mean that it gets a chance to be transformed into a real Recommendation.
Paul Tattersfield
01:13:26
different ruls for different proposals
Marie Pattullo
01:13:44
Can we please stop with the %s? They're really misleading - one individual doesn't have equal weight to one SG/C/association. Thanks.
Paul Tattersfield
01:14:25
Zak +1
Rebecca Tushnet
01:14:26
I am also concerned about different rules for different proposals, especially putting some in the bin as Susan says and sending some for further work by proponents
Mary Wong
01:14:37
@Zak, yes. The discussion has to happen sometime and BEFORE the consensus call. so that draft final recs can be prepared for the consensus call.
Michael R. Graham
01:14:54
@Marie -- Agree totally. Public comments are intended to inform, and in limited cases to amend.
Georges Nahitchevansky
01:15:21
Agree with Zac. Seems to be many different standards depending on the proposal. So really not sure what the standard is in reality
Kathy Kleiman
01:15:39
Tabling makes sense.
Claudio DiGangi
01:16:15
I agree with Zac too. The decision-making process needs to be ironed out obviously. Agree with tabling
David McAuley (Verisign)
01:16:17
Thank you, Phil, we can prepare, pro and con, for winding it up next week (or a bit later prior to consensus call) and staff can prepare with crisp advice
Paul McGrady
01:16:49
@Georges - I understand that concern and believe that tweaking things can/should be possible. But, where does the tweaking stop? Glad to hear the co-chairs will take that issue up on their call. Agree having clear direction would be helpful.
Claudio DiGangi
01:18:30
its every challenging to consider public comments on proposals that we haven't discussed on the merits, but we are where we are.
Paul Tattersfield
01:19:24
exactly Claudio
David McAuley (Verisign)
01:20:48
agree with how Phil characterized it
Kathy Kleiman
01:20:55
+1
Julie Hedlund
01:21:03
Zak’s hand is up
Kathy Kleiman
01:21:25
I think we have other recommendations on this.
Julie Hedlund
01:22:59
@Kathy: noted
Ariel Liang
01:23:15
Kathy was probably about the translation of the notice of complaint
Lori Schulman
01:25:51
Agree with killing it.
Kathy Kleiman
01:25:57
:-)
Michael R. Graham
01:25:58
@Phil -- Agree
David McAuley (Verisign)
01:27:01
I was a partial author of #36, sorry to see its demise but Phil is right in making that call
Griffin Barnett
01:27:49
Agree David, as the other co-author
Claudio DiGangi
01:27:51
Phil keeps saying that certain proposals couldn't reach broad support to become WG recommendations, so instead they were posted as individual proposals. Again, my understanding is we did not discuss the individual proposals on their merits to make that determination. We only discussed whether "should this individual proposal be posted for public comment?" - Julie or Marie can you please correct me if I am mistaken?
Rebecca Tushnet
01:29:29
Claudio, there was a point at which people could propose that individual proposals be promoted to WG recommendations given sufficient support
Rebecca Tushnet
01:29:39
But no one proposed any individual proposal's promotion
Rebecca Tushnet
01:29:54
So it was a part of our discussion albeit not a big part because there didn't seem to be much interest in doing that at the time
Rebecca Tushnet
01:30:11
That is, a point before the public comment period when we reviewed the individual proposals
Mary Wong
01:31:07
@Claudio, we can check to confirm but IIRC the TMCH and URS proposals were not solicited or discussed in the same way or to the same extent. One reason was when these were first discussed (TMCH was back in 2017); another was the protracted discussions over the URS and how to handle Sub Team vs Individual proposals. And as Rebecca says, there was a window where WG members were able to propose/support a proposal becoming a recommendation.
Michael R. Graham
01:32:33
I think the issue is whether Deloitte's efforts/materials are sufficient -- Which should be taken up by the IRT
Julie Hedlund
01:34:15
@Phil: Thank you, that seems clear.
Claudio DiGangi
01:34:48
@Mary, thanks for checking. Even if that is correct, if someone didn't propose to raise their proposal (I honestly don't recall when that happened on the URS proposals) that is not the same thing as "the proposal wasn't able to obtain sufficient working group support" and therefore they was posted as an individual proposal.
Rebecca Tushnet
01:34:55
I would want the rewrite to make clear that the Q is whether enough is being done to inform all participants in the chain, not just TM owners who might have TMCH entries
Julie Hedlund
01:35:15
@Rebecca: Noted.
Michael R. Graham
01:35:43
@Rebecca -- Agree
Paul McGrady
01:36:54
+1 Susan. This seems redundant to the mainstream work of the WG
Michael R. Graham
01:37:06
+1 Susan as well
David McAuley (Verisign)
01:37:23
This is related sort of to next TMCH individual rec as well - to amend AGB to use 'text marks'
Georges Nahitchevansky
01:37:57
agree with [Phil
Michael R. Graham
01:38:10
This is a proposal and public comment that as Susan points out is redundant -- this should be pointed out in our report of review.
Claudio DiGangi
01:38:16
haha that was funny Phil
Michael R. Graham
01:40:16
Q to Staff: Is Proposal #2 the one WG approved relating to the definition of "word mark" etc?
Griffin Barnett
01:40:31
nope
Julie Hedlund
01:40:36
no
David McAuley (Verisign)
01:40:39
agree with Phil on that view
Julie Hedlund
01:40:48
TMCH Individual Proposal #2The TMCH Provider Deloitte should be required to comply with the TMCH rules limiting the acceptance of marks into the TMCH Database to “word marks”.
David McAuley (Verisign)
01:40:50
this appears on life support
Michael R. Graham
01:40:55
See the answer on screen -- thanks.
Griffin Barnett
01:41:36
By disposing of proposals 2 and 3, we basically are approving of the current status quo
Michael R. Graham
01:41:37
+1 Phil -- agree
Georges Nahitchevansky
01:41:40
It goes to the waste paper basket
Griffin Barnett
01:41:41
Which is fine by me
David McAuley (Verisign)
01:41:44
speak now or forever hold your mark
Griffin Barnett
01:42:50
The disclaimer issue was at the heart of proposal 3
Marie Pattullo
01:42:53
Disclaimers aren't allowed in all jurisdictions.
Julie Hedlund
01:43:01
That is not a new thought
Michael R. Graham
01:43:06
@Griffin -- Now that I think about it, I agree -- status quo is preferable to either of these and these did not receive sufficient support for Recommendation.
Julie Hedlund
01:43:07
It has been discussed by the WG
Scott Austin
01:43:19
+1 Phil. Agree
Mary Wong
01:43:19
Proposals #2 & #3 seem to be related to the WG’s discussion about the scope of marks allowed into the TMCH, which was quite fulsome (IIRC).
Claudio DiGangi
01:43:43
support status quo on this topic
Georges Nahitchevansky
01:44:03
We have hashed this out numerous times in the past. The comments suggest we stay with what exists and not discuss new proposals
Maxim Alzoba
01:45:15
disclaimer will not save from anything in our jurisdiction (example health concerns, criminal code violation e. t. c)
Michael R. Graham
01:46:05
@Phil -- Can we review Proposal 5 as well since BC notes preference for it.
Paul Tattersfield
01:46:55
This is a very troubling proposal it runs the risk of possibly excluding legitimate rights holders (UNHCR for example). The issue is the evidencing of those rights in a low cost RPM. (Registered, Court sanctioned etc.) The GAC has indicated it wishes to see IGO names and acronyms protected and that can easily be done. Greg as very experienced IP attorney has stated #89 serial registered marks in the USPTO are not registered trademarks. So the problem is we risk throwing the baby out with the bathwater so to speak when the author’s main objective seems to be seeking to ensure GIs are excluded.
Claudio DiGangi
01:47:24
I'm concerned this proposal will exclude marks that are protected by statute or treaty but those marks not are called TRADEMARKS within the statue or treaty, and will therefore be excluded from protection
Paul Tattersfield
01:47:41
Claudio +1
Mary Wong
01:48:19
This proposal goes toward the scope of the TMCH; specifically, “marks protected by statute or treaty”. The WG does not currently have a recommendation that addresses GIs or that changes the scope.
David McAuley (Verisign)
01:48:44
Thanks Mary
Julie Hedlund
01:49:24
hand up from Rebecca
Maxim Alzoba
01:50:16
bye all, have to drop
Paul Tattersfield
01:50:35
I don think GIs should be in - But I don't think we should put legitimate rights holders at risk
Paul Tattersfield
01:51:00
I agree This is a very important matter please can we have this proposal and Claudio’s alternative on a discussion call prior to the consensus call? Thank you.
Griffin Barnett
01:51:04
Based on the comments here, not sure it is accurate to say there is wide agreement about excluding GIs from the TMCH or a clearinghouse
Griffin Barnett
01:51:16
(Even if it’s a separate one specifically for GIs)
Claudio DiGangi
01:51:28
agree with Griffin
Griffin Barnett
01:51:45
Personally, I don’t have strong views one way or the other on either of these proposals (4 or 5)
Paul Tattersfield
01:52:07
the main issue Griffin is that GIs don't fow into the RPMs
Griffin Barnett
01:52:48
Paul T - can you clarify what you mean?
Rebecca Tushnet
01:53:24
Some of the nonsupport for 4 is support for 5 and vice versa
Paul Tattersfield
01:54:00
There's little prroblem with allowing GIs in 3,2.3.4 which is a kind of ancillary database which sunrise and TMBH dont flow from
Mary Wong
01:54:28
The WG debated GIs and “marks protected by statute or treaty” extensively, a few times. However, the Initial Report does not contain any specific agreed recommendations concerning the scope of the TMCH as it relates to GIs and other treaty-protected designations.
Paul Tattersfield
01:55:01
so they go in 3.2.3.4 Mary
Marie Pattullo
01:55:20
@Mary - so absent one of these individual proposals being adopted is it status quo again?
Mary Wong
01:55:41
@Marie - that is the staff understanding, yes, based on what is in the Initial Report and the WG deliberations up to now.
Marie Pattullo
01:55:58
Thanks, Mary.
Kathy Kleiman
01:56:02
The main TMCH database should only be used for sunrise and trademark claims.
Claudio DiGangi
01:56:29
@kathy, there maindatabase is also for limited registration perod
Marie Pattullo
01:56:36
Kathy - sorry, but "main"? Is there an ancillary TMCH?
Kathy Kleiman
01:56:54
yes -- there an be many ancillary databases
Marie Pattullo
01:57:16
Within the TMCH?
Rebecca Tushnet
01:57:21
The problem here is that "word mark" is underdefined; I don't think people are contending that Deloitte is an evil breaching institution
Rebecca Tushnet
01:57:31
but it does have incentives to put in everything it can
Claudio DiGangi
01:57:44
@kathy, sorry for typo. I meant to say the main TMCH is also available for the Limited Registration Period rpm
David McAuley (Verisign)
01:58:41
acceptable here
Kathy Kleiman
02:00:07
Tx Phil for chairing!
Kathy Kleiman
02:00:20
Would it be easier to have twice a week or one 2 hour meeting?
David McAuley (Verisign)
02:00:27
I support twice a week full WG calls as subgroups wind up
Julie Hedlund
02:00:28
Likely the WG would pick up the SGA slot — Tuesday, 1300 UTC
Zak Muscovitch
02:00:28
omg
Paul McGrady
02:00:29
Can we do that after B is complete? Otherwise it is 3
Rebecca Tushnet
02:00:30
can we do a doodle for availability? I have a bunch of commitments already scheduled
Julie Hedlund
02:00:48
@Paul: I think that’s what we would do.
Kathy Kleiman
02:01:18
Tx for sharing that, Lori.
Michael R. Graham
02:01:30
@Lori -- Agree. 90 minutes once a week fine -- or (at most) 2 meetings of 60 minutes.
David McAuley (Verisign)
02:01:37
how about two x 60 minutes (though I support 2 x 90)
Lori Schulman
02:01:38
We are all trying to keep our respective practices going.
Paul McGrady
02:01:53
Are we going to meet the deadline? If not, maybe we put these Individual Proposals aside until the Mainstream work is done.
Lori Schulman
02:01:53
This is an extraordinary amount of time.
Scott Austin
02:02:14
@Lori +1
Julie Hedlund
02:02:20
@David: Thank you for the suggestion. We’ll consider two calls at 60 minutes each.
Lori Schulman
02:02:36
2 60 mins call are more palatable than 2 90 mins
Lori Schulman
02:02:47
I prefer a more efficient 90 min call
David McAuley (Verisign)
02:02:56
Thanks Phil, staff, and all
Kathy Kleiman
02:03:01
Tx Phil!
Jason Schaeffer
02:03:03
@Lori +1
Paul Tattersfield
02:03:08
thanks Phil, bye all
Julie Hedlund
02:03:12
Thanks so much Phil and all!
Julie Bisland
02:03:15
Next call: Wednesday, 15 July 2020 at 17:00 UTC for 90 minutes.
Zak Muscovitch
02:03:20
THanks Phil and Staff
Scott Austin
02:03:20
Tx Phil
Michael R. Graham
02:03:24
Thanks all
Lori Schulman
02:03:34
thanks Phil and staff