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.

https://docs.google.com/spreadsheets/d/1QTt_m5qdzoalRDcIUED01ur-yJgODCex8bj_-aKO7fI/edit#gid=1018133708

Is there discussion on the concensus call or it just a vote on as is?

this is the full working group?

@Paul: This is the full WG

The question is whether it should go to a WG consensus call, as is, or modified

where was Kathy suggesting sending it?

@Phil & Staff, this is one where scrolling down to see who all responded to this and how.

would be helpful

@All: The consensus call is not a formal vote. The Co-Chairs make the designation.

WIPO notes a concern about lack of continuity of provider operations.

@All: This is the time for the WG to discuss whether this needs clarification, etc.

I recommend we lop off the no presumptive renewal and move forward the community support for formal contracts.

OK, thanks Phil

so it needs to go for further review before the consensus call

@Paul - yes

thanks David

We are the full WG - but we are doing the first review.

good question, Paul

Hi sorry to join late…had another call run long

Welcome Griffin.

agree with Susan about MOU

@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.

Agree

Susan +1

@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.

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.

How would a contract with ICANN do that, Michael?

So its this discussion and then the consensus call, per Mary

it’s

@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

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

@Kathy -- not sure

Tx!

@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?

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

@Susan -- several comments call for providing standards or ability to bring claims against providers or panelists -- some for "negligence" whatever that may be.

and I say that not as a supporter of this proposal

@Michael, thanks

hand up after Kathy

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).

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

@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.

agree with Michael - Rule 12 provides appeal

If not today at some point in a WG meeting, sometime before the consensus call

Several WG members have said they wish to discuss this proposal further therefore it should scheduled for a further meeting BEFORE a consensus call

agree with Paul T.

Why weren’t these individual put into a sub group?

Why weren’t these individual proposals put into a sub group?

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.

Are individual proposals transmogrified into Recommendations by surviving this process? Or is that a different transmogrification process later?

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?

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

@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.

@Paul: If the WG agrees to have a proposal become a recommendation.

Then let's give into Q1 answers!

that will also allow us to look at the rec that Ariel noted was related to this

Agree with Phil and David -- This Proposal and Public Comment discussion should be moved to a separate meeting.

@Julie, were the individual proposals discussed on the merits (to informally sense consensus-levels) by the WG before they were posted for public comment?

@Zak - so a separate process in between this call and making it a Recommendation?

Kthy wanted to split into two parts

(PS: this really reveals what a bad idea Individual Proposalism really is. No idea what to do with them. Ugh.)

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.

@Claudio: all of the proposals were discussed so that the WG could determine which should be put forward for public comment.

agree with Paul M.

good point, Paul, and nice term - proposalism

Good questions, Zak!

@Paul M, agree, we just created confusion for ourselves

Paul +1 should have been dealt with before public comments

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.

@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.

sounds good

Agree, Susan

@ 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.

50% of what?

This is the working group

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.

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."

@Griffin - understood, by "up" I mean that it gets a chance to be transformed into a real Recommendation.

different ruls for different proposals

Can we please stop with the %s? They're really misleading - one individual doesn't have equal weight to one SG/C/association. Thanks.

Zak +1

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

@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.

@Marie -- Agree totally. Public comments are intended to inform, and in limited cases to amend.

Agree with Zac. Seems to be many different standards depending on the proposal. So really not sure what the standard is in reality

Tabling makes sense.

I agree with Zac too. The decision-making process needs to be ironed out obviously. Agree with tabling

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

@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.

its every challenging to consider public comments on proposals that we haven't discussed on the merits, but we are where we are.

exactly Claudio

agree with how Phil characterized it

+1

Zak’s hand is up

I think we have other recommendations on this.

@Kathy: noted

Kathy was probably about the translation of the notice of complaint

Agree with killing it.

:-)

@Phil -- Agree

I was a partial author of #36, sorry to see its demise but Phil is right in making that call

Agree David, as the other co-author

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?

Claudio, there was a point at which people could propose that individual proposals be promoted to WG recommendations given sufficient support

But no one proposed any individual proposal's promotion

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

That is, a point before the public comment period when we reviewed the individual proposals

@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.

I think the issue is whether Deloitte's efforts/materials are sufficient -- Which should be taken up by the IRT

@Phil: Thank you, that seems clear.

@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.

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

@Rebecca: Noted.

@Rebecca -- Agree

+1 Susan. This seems redundant to the mainstream work of the WG

+1 Susan as well

This is related sort of to next TMCH individual rec as well - to amend AGB to use 'text marks'

agree with [Phil

This is a proposal and public comment that as Susan points out is redundant -- this should be pointed out in our report of review.

haha that was funny Phil

Q to Staff: Is Proposal #2 the one WG approved relating to the definition of "word mark" etc?

nope

no

agree with Phil on that view

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”.

this appears on life support

See the answer on screen -- thanks.

By disposing of proposals 2 and 3, we basically are approving of the current status quo

+1 Phil -- agree

It goes to the waste paper basket

Which is fine by me

speak now or forever hold your mark

The disclaimer issue was at the heart of proposal 3

Disclaimers aren't allowed in all jurisdictions.

That is not a new thought

@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.

It has been discussed by the WG

+1 Phil. Agree

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).

support status quo on this topic

We have hashed this out numerous times in the past. The comments suggest we stay with what exists and not discuss new proposals

disclaimer will not save from anything in our jurisdiction (example health concerns, criminal code violation e. t. c)

@Phil -- Can we review Proposal 5 as well since BC notes preference for it.

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.

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

Claudio +1

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.

Thanks Mary

hand up from Rebecca

bye all, have to drop

I don think GIs should be in - But I don't think we should put legitimate rights holders at risk

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.

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

(Even if it’s a separate one specifically for GIs)

agree with Griffin

Personally, I don’t have strong views one way or the other on either of these proposals (4 or 5)

the main issue Griffin is that GIs don't fow into the RPMs

Paul T - can you clarify what you mean?

Some of the nonsupport for 4 is support for 5 and vice versa

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

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.

so they go in 3.2.3.4 Mary

@Mary - so absent one of these individual proposals being adopted is it status quo again?

@Marie - that is the staff understanding, yes, based on what is in the Initial Report and the WG deliberations up to now.

Thanks, Mary.

The main TMCH database should only be used for sunrise and trademark claims.

@kathy, there maindatabase is also for limited registration perod

Kathy - sorry, but "main"? Is there an ancillary TMCH?

yes -- there an be many ancillary databases

Within the TMCH?

The problem here is that "word mark" is underdefined; I don't think people are contending that Deloitte is an evil breaching institution

but it does have incentives to put in everything it can

@kathy, sorry for typo. I meant to say the main TMCH is also available for the Limited Registration Period rpm

acceptable here

Tx Phil for chairing!

Would it be easier to have twice a week or one 2 hour meeting?

I support twice a week full WG calls as subgroups wind up

Likely the WG would pick up the SGA slot — Tuesday, 1300 UTC

omg

Can we do that after B is complete? Otherwise it is 3

can we do a doodle for availability? I have a bunch of commitments already scheduled

@Paul: I think that’s what we would do.

Tx for sharing that, Lori.

@Lori -- Agree. 90 minutes once a week fine -- or (at most) 2 meetings of 60 minutes.

how about two x 60 minutes (though I support 2 x 90)

We are all trying to keep our respective practices going.

Are we going to meet the deadline? If not, maybe we put these Individual Proposals aside until the Mainstream work is done.

This is an extraordinary amount of time.

@Lori +1

@David: Thank you for the suggestion. We’ll consider two calls at 60 minutes each.

2 60 mins call are more palatable than 2 90 mins

I prefer a more efficient 90 min call

Thanks Phil, staff, and all

Tx Phil!

@Lori +1

thanks Phil, bye all

Thanks so much Phil and all!

Next call: Wednesday, 15 July 2020 at 17:00 UTC for 90 minutes.

THanks Phil and Staff

Tx Phil

Thanks all

thanks Phil and staff