Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.

I posted an update too

As did I

yes

@Maxim and Rebecca - did your positions change? If not, I think the co-chairs have what they need.

https://docs.google.com/document/d/12w5W2bQcviAqLwoDVB0vVK0n7SKj3fzP48NQyEW-1Q4/edit#

With respect, I think Ariel is not answering the question

Which was what was pre-Small group and what was suggestions from the Small Group

Hand up

Sorry--they are still under discussion/new and not our language

Support that addition

i support it

+1 Phil

makes sense

I would just suggest for that bullet “Witholding, reserving, or self-allocating trademark-corresponding domains…” for grammatical reasons

Agree - the initial sentence should say “Sunrise abuse of the type intended to be prohibited under this Recommendation include:”

Maxim - doesn’t the previous highlighted paragraph cover your concern?

I should have added: possibilities include "the WG did not agree on these examples"; "the WG also received views that pricing practices were not within its jurisdiction"; "other views emphasized the risk of targeting pricing decisions on legitimate business models, including the practice of identifying reserved names"

If we don't identify legitimate business practices, the preamble is meaningless

intents are not important at implementation phase, there are no safeguards

it merely restates that practices that don't violate the rules don't violate the rules

Can Maxim give a real world example that actually happened in the last round?

may I respond to Paul?

@Maxim - and did any trademark owner actually object? If not, your example proves the non-problem.

Also isn't it a bit chicken and an egg. If the new implementation of the recommendation' created the ambiguity that is complained of - won;t that become 'ICANN policy' itself therefore the preamble is rendered useless?

... this recommendation is not intended to preclude or restrict Registry Operator’s legitimate business practices that are compliant with ICANN policies and procedures.

That's my concern, Alan, especially without a counterbalancing list of "we don't mean …."

Reserving a name to a police dept is obviously legitimate.

Perhaps "the working group further notes that the IMPLEMENTATION of this recommendation is not intended to...

Hand up from staff

Maxim seems to be overlooking the “intent” element

Can Paul offer language revisions in light of concerns thus far?

In terms of examples, I note that the objections to the .madrid ALP included that it would interfere with TMCH registrants (and people here might agree)

they may if the language if adoptee

adopted

+1 Paul.

Maxim is right: it's not a red herring because this proposal is to cover new ground which is plausibly in the area he has raised

I do not think it is a rad herring

red

Brian. If I may respond.

part of the concern is around language that is a bit open and can be misused -

we do not have consensus, so it opinion of some members and objected by some other members

Ariel, can you highlight language that would be moved?

Tx!

Basically the bullet points

the language has huge potential of being used for extortion of money from Registries

whether moved or not I would like to comment on the notion of discriminatory pricing practices when we get to 2d bullet

Ariel, I think moving is a good first step but it does also need additional views

in the context

Yes Rebecca. That’s staff’s understanding as well

. sucks - what percent of all TLDs is that? it is less then 0.1%

a reason for concern for specific language is that this is essentially direction to another team - the IRT

Sunrise is only for TMCH entries

might be free for all TMCH entries?

I agree with David: if we just give free floating "registries can do bad things" language then many different things could happen inconsistent with what we agreed on

(registry operators, sorry; too fast typing)

I would prefer not to adopt Kathy’s suggested change to the initial language introducing the bullets

About referring to the IPC and BC because it was not just those groups

If we want to clarify the language to make clear that we are talking about abuse perpetrated by ROs we can do that

Some primary forms of perceived Sunrise misuse expressed by trademark owners of Registry Operators' conduct include...

Some communities in the WG and commenters shared...

I'm glad that we are working with the actual language now and not off on wild goose chases.

:-)

Hand up from staff

+1 for removal of discouraging

agree with Brian and Phil on discouraging

+1

if claims are still active at the later than sunrise registration - the harm is minimal (TM owner is notified and able to act)

Is everyone comfortable with the 2nd bullet point?

I remind all of us - reservation is a dynamical process, not static

Hand up

I would suggest staff perhaps try and update the language based on the discussion and put it to email list and perhaps if needed we discuss on next call

for example, ICANN changed red Cross required list of reserved names almost 2 months ago

But Sunrise period is concrete period fort each TLD so intentional reservation practices circumventing Sunrise is the only issue

+1 David

direct price regulation will lead to issues in anti monopoly agencies around the globe

ALP did not work

Is pricing really irrelevant when the price is based primarily on the value of a trademark corresponding to a given generic word?

Rebecca +1

. Madrid is the only survivor of ALP

The picket fence related language is already in the context

I take the point that the ALP needs to work better in order to provide a legitimate means of getting certain domains to certain parties without running afoul of Sunrise requirements

Were those proposed additions in the public comment?

@Griffin first, it needs to work

To be clear: I don't think we can resolve ALP issues in context language--I just think a richer picture would help

common words; dictionary words seems fair wording to add to the new Context language.

Again, Were those proposed additions in the public comment?If not, we are just relitigating here. If they were, who said them?

publication of reserved lists was not supported

Brian - if we miove the discussion to list as Ariel suggested will we separately address the 'additional guidance' from small team now? or on list? I also want to comment on that

Hand up

per the empirical research of Barton Beebe & Jeanne Fromer: in the US and Europe, 75-90% of the 1000 most used dictionary words are registered trademarks (in English; preliminary results suggest similar but somewhat lower results in other EU languages)

the same way as a publication TMCH names was not supported

Personal view -- our goal here is to provide general guidance to an IRT which, if the Rec receives consensus, will be tasked with drafting a specific RA provision that more precisely delineates what registry conduct may trigger an enforcement action

It is these kinds of judgment calls that should militate in favor of a third-party dispute resolution procedure applicable to this provision

Akin to picdrp

So what is in here already is from public comment. What others are suggesting is just re-litigation of their old positions.

also language of public comments opposing it

@Griffin -- with our recommendation to allow joint filings under pddrp, why isn't it a sufficient 3rd party enforcement mechanism to take action against discriminatory sunrise circumvention that results in second level infringement? why is something more, new, and undefined required?

@Paul, the language does not take into account public connents of CPH

comments

@Maxim - Ariel just said that the text reflects public comment.

(BTW, for folks who like this stuff, the non-registered most-used dictionary terms include: “despite,” “died,” “difficult,” “disease,” “killed,” “lack,” “loss,” “older,” “problem,” "violence” “least,” “perhaps,” “probably,” “trying,” “drug,” “religious,” “wants,” “husband,” “wife,” “married,” “male,” “woman,” “daughter,” “herself,” and “himself”)

some words can cost a lot - 2 letter domains, for example

the language is not agreed upon

I think there is a concern that if we provide general guidance it continue to fail to translate into productive outcomes from IRT & GDS. I know with ALP it would have been much easier if we could have said something along the lines “The working group recommends there should be a predictable process to timely evaluate and approve or reject an ALP request”.

Whatever its called, people can put in their pet positions, but let's not pretend it is helpful implementation guidance.

it is an anecdotal example

+1 David

We should try for implementation guidance.

+1 David

I have no objection in trying to get to agreed to implementation guidance, but do not think it is appropriate to compile everyone's various opinions and claim it is implementation guidance.

I agree with David - I think we should give one more shot for a refined version of implementation guidance based on staff attempt at further revision based on today’s discussion

I think we can reach something generally agreeable with a few key refinements

We just need to thank staff for giving it a go

@Brian - do you mean a challenge mechanism that goes to a neutral or do you mean some mechanism for aggrieved parties to complain to ICANN Compliance?

Kathy, were your comments in your personal capacity or as co-chair? Hard to follow.

But context doesn’t need to capture consensus views? At the very least surely we can say that someone the WG supported a new third-party challenge mechanism as a means of enhancing compliance around this proposed new RA provision

third party mechanism was opposed by WG members also

*some in the WG

Agree with Griffin on this: But context doesn’t need to capture consensus views?

It’s not “unrelated” to ICANN Compliance…. In my view it would be coordinated with Compliance in a similar way PICDRP and PDDRP are

100% agreed Phil - I'm trying to figure out how this is not recommendation

+1 Phil

+1 Phil

we do not have consensus here

@Phil- can you answer the question that Brian actually asked?

this proposal did not have consensus support

I take Phil’s points, but don’t agree with his characterization that the proposal about a challenge mechanism is unrelated to this recommendation…it’s clearly related bc it is a chellenge mechanism for the prohibited activity under this recommendation

we will not survive such comeback, so we do not need to add it here

I do not think it can appear as just some thought external challenge and some did not - it is a policy rec that deserves a consensus call and we cannot simply send it along with equal treatment to other ideas, there is enough opposition to it that that would not be right, IMO

In a personal capacity, I don't believe we need a new 3rd party challenge mechanism for aggrieved trademark owners to communicate to ICANN Compliance a belief that they should enforce the new RA provision

hand down - my reasons are above in chat against what Brian suggested

@Paul - we've had a conversation for over an hour...and I'm glad we did!

@Kathy - not about the small team #2 outputs. Were we on the same call?

unlimited number of third parties challenging domain names in an unpredictabile manner - will cause consumer confusion and loss of confidence

Maxim - on what basis do you assert that? PICDRP and PDDRP didn’t have that effect

@Jason - we can simply put a header on the Deliberations (Opinions section) that none of the below ideas got consensus. That seems fine and universal.

@Griifin - check the text of the text for safeguards limiting period or number of parties

What text?

@Brian, you didn't misstate anything. This is just strawmaning by those who want to censor it out of the Deliberations section.

@Griffin, of the 3rd party tool suggestion

+1 David (in my personal capacity)

+1 David

ops, time running fast on this topic

Let’s conclude…. It seems to me we have agreed on the current text of Rec 2, that Staff should propose revised implementation guidance by refining the text currently in green on screen, and that we don’t have agreement to include additional small group language re challenge mechanism but that we could (potentially) capture that discussion as part of context

Thanks to all WG members for their civil and constructive commentary during today's meeting

Tx Brian for chairing today!

Thanks Brian, staff (good luck), and all

We need it :) @David

Thx Ariel