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051040040 RPMs in all gTLDS PDP WG
Andrea Glandon
31:34
Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.
Maxim Alzoba
33:33
hello all, sorry for being late
Julie Hedlund
36:12
hand up
Lori Schulman
39:30
Hello. I apologize for being late.
Jeffrey Neuman
40:40
12 minutes have gone by and we haven't discussed the substance ;)
Julie Hedlund
40:45
The point staff was trying to make is that if it is decided to open a public comment period that would need to be done ASAP so that staff can prepare the interim supplemental report for the comment forum and get the forum opened in the next two weeks if at all possible. Note that the WG will need to approve the interim supplemental report before it can be published for public comment, so there will need to be time for that.
Marie Pattullo
41:00
+1, Jeff. Can we not just discuss it now?
Jeffrey Neuman
42:18
A Draft Final Report for public comment is not so unusual anymore (as the Co-Chairs for this group reminded me as Co-Chair of SubPro).
Rebecca Tushnet
42:32
Just to be clear, though Paul McGrady said no one spoke up on the mailing list, there is other opposition besides Phil's; I'm waiting for that discussion.
Claudio DiGangi
43:14
ICANN’s work product is often to centered around on and/or driven by artificial deadlines. It shouldn’t stand in the way of making progress on questions in or charter that need to be addressed.
Griffin Barnett
46:01
I really am not following Maxim’s logic here
Jeffrey Neuman
46:17
Bad Faith is still required
Marie Pattullo
46:22
But why would that have any "bad faith"?
Cyntia King (USA)
46:23
Likewise, I don't understand
Griffin Barnett
46:32
The proposed change has nothing to do with a registry’s legitimate ability to provide certain names to certain parties outside of Sunrise through other recognized processes
John McElwaine
46:43
I don't think that would be bad faith if they have a legal obligation to given the names out to others
Paul McGrady
46:52
@Maxim, that is a red herring since sell a police second level to a police department would not "take unfair advantage" or "impair the distinctive character". The new language in yellow has to be read with the rest of the policy.
Griffin Barnett
47:03
As Jeff noted, the other elements of the PDDRP apply….. bad faith, intent to unfairly take advantage of a mark, etc.
Griffin Barnett
47:36
(And Paul)
Maxim Alzoba
49:08
my connection fell off
Maxim Alzoba
50:29
GEO tlds have to give lots of strings to city, including police, and the only method is reserving names a d released only to city authority after sunrise
Griffin Barnett
50:43
Maxim - that would not run afoul of the PDDRP
Griffin Barnett
50:53
BC there are elements of bad faith, etc built into the PDDRP
Paul McGrady
50:56
Rebecca, respectfully, you are reading into the TM-PDDRP American ideas and case law.
Lori Schulman
50:59
Agree about taking change within context. And there is a public interest argument as well as legitimate interest from third parties in terms of how you would delegate a string like "police". It's the apple.computer vs. apple.fruit issue.
David McAuley (Verisign)
51:05
With futhetr respect to public comment, Paul noted that we spoke about circumvention in context of Sunrise Rec #2 – true, but that only affects future new gTLDs. TM-PDDRP changes would affect all gTLDs – much different and the public comments on circumvention could not anticipate this.
Maxim Alzoba
51:07
and police is a TM
Lori Schulman
51:47
"Police" is a trademark within context of music. Not law enforcement.
Lori Schulman
52:00
TM owners have to prove their case.
Maxim Alzoba
52:11
new hand
Paul McGrady
52:23
All the proposal does is make it clear that it applies to both pre-registration and post-registration activities. Its very simple.
Marie Pattullo
52:35
But what you're talking about doesn't fit with the bad faith, intent to unfairly take advantage of a mark etc. elements on this RPM., Maxim.
Maxim Alzoba
52:50
@Lori, formally it is applicable to this text
Marie Pattullo
53:11
Only if the RO acts in this bad way, Maxim.
Lori Schulman
53:12
Maxim, I don't think so because of the elements of the policy.
Griffin Barnett
53:35
@Maxim - no. Your concern is literally overcome by the other elements of the PDDRP. You cannot take one sentence fragment in a vacuum
Maxim Alzoba
53:36
note, General availability is not constant price, it might have Landrush with prices higher than after it
David McAuley (Verisign)
53:39
what challenges us is to find a way to narrowly and properly define the issue here without giving rise to unintended scope-creep to TM-PDDRP
Jeffrey Neuman
53:53
oh, I agree it should go out for public comment
Cyntia King (USA)
53:55
I'm confused - we are talking about the ability to raise a complaint for investigation, right?
Marie Pattullo
54:01
No, I don't think "everything under the sun is bad faith" - quite the contrary, TBH,
Paul McGrady
54:18
Welcome new visitors!
Lori Schulman
54:23
I don't recall discussing this 3 years ago in context of PDDRP.
Jeffrey Neuman
54:29
@Jason - not all contracted parties would object
Paul McGrady
54:33
@Lori - we didn't.
Jeffrey Neuman
55:40
Can I ask which language specifically is the added language that people have difficulties with
Jeffrey Neuman
55:50
Only the highlighted language?
Paul Tattersfield
55:53
what happend to .feedback?
Paul McGrady
56:34
For clarity, again, the yellow is only the new text from the last version we looked at.
Paul McGrady
57:04
Sounds like most everyone is saying it goes to public comment.
Maxim Alzoba
57:14
a registry is a project with cost >1m usd (with cheap labour and consultant s), without a strong safeguard s, it can not be used (what if the panelist goes rogue?)
Rebecca Tushnet
57:38
Jeffrey: no, not just the added language; the overall reorientation which appears to try to gut the required "infringement" nexus by redefining infringement; if it doesn't redefine infringement it doesn't seem to make a substantive change, as Phil pointed out on the list
Maxim Alzoba
57:55
the suggested text has more than one issue
Jeffrey Neuman
58:05
Sorry, I am missing the re-orientation
Jeffrey Neuman
58:20
What has been re-oriented
Maxim Alzoba
59:23
it is more than 3 problems, not only pricing, also wild qualification s of what is bad
Rebecca Tushnet
01:00:12
In response to Phil's points about the infringement nexus, Paul claimed on the list that "infringement" means "the action of limiting or undermining something," which is not what TM infringement means. If you adopt that view of "infringement," then there's no longer a nexus to domain name registrations that cause confusion
Rebecca Tushnet
01:00:39
If you don't adopt that view of "infringement," it's not clear what scenarios are newly covered by the proposal and thus not clear why we would push for this
Julie Hedlund
01:00:45
@Kathy: Procedurally the WG and Co-Chairs can agree to seek comment on the proposal, even if there isn’t broad support either way.
Kathryn Kleiman
01:02:59
Julie: this is of great concern - that we would delay the WG for many weeks from finishing Phase I to put forward something which does not have strong cross-community support (if it does not have cross-community support).
Paul McGrady
01:03:31
@Rebecca - respectfully, the text of the TM-PDDRP only uses the word "trademark" before infringement in 1 out of 4 times. Reading into the TM-PDDRP words that aren't there is not good construction. I was a member of the RPMs IRT and if we wanted to add the word "trademark" before the other 3 uses of infringement, we would have.
Maxim Alzoba
01:04:24
why some people
Maxim Alzoba
01:04:28
not all
Philip Corwin
01:05:17
Please lower old hands. Thanks
Maxim Alzoba
01:05:45
@Jeff, I think people were quite clear I what is wrong herem
Jeffrey Neuman
01:06:26
@Maxim - I think people were clear about what they didn't like about Paul's emails, but I have not heard anything about the actual changes being proposed.
Maxim Alzoba
01:06:55
last time there were words that the last time was really last extension (at council)
Claudio DiGangi
01:07:03
David, hope you enjoyed the vacation!
Jeffrey Neuman
01:07:21
I was the one initially responsible for drafting the PDDRP way back in 2009-2010, so I am more than familiar with this policy
David McAuley (Verisign)
01:07:27
Thanks Claudio, any vacation is good ;-)
Claudio DiGangi
01:08:06
just had a question, because in that you note you mentioned this DRP applies to all gTLDs (but we are not proposing this as a Consensus Policy right?) was just hoping to get clarification :)
Claudio DiGangi
01:08:25
That last comment was @David
David McAuley (Verisign)
01:09:01
But I see us talking about an RPM and it applies as it does unless we explicitly limit it, I would think, Claudio
Paul McGrady
01:09:15
Rebecca, you have to read 2 (i) and (ii) and (iii) together and they are connect by an "or". Infringement doesn't show up until (iii)
David McAuley (Verisign)
01:09:28
Section 5 on standing is the infringement part as I recall
Claudio DiGangi
01:09:34
@David e.g. PPDRP doesn’t apply to .com , .net
Paul McGrady
01:09:50
Correction, "trademark infringement" doesn't show up until (iii)
Kathryn Kleiman
01:10:05
Clearly people disagree, Jeff
Rebecca Tushnet
01:10:33
Phil is right: the standing provision is independent of (i)-(iii). That was a constraint on the whole thing.
Jeffrey Neuman
01:10:38
Phil - that is an incorrect interpretation
Maxim Alzoba
01:10:42
formally it kills GEOtlds
Jeffrey Neuman
01:10:47
Especially as I was the one who drafted it
Jeffrey Neuman
01:10:57
But, you can all tell me I am wrong
Marie Pattullo
01:10:57
How, Maxim?
Maxim Alzoba
01:11:23
well described case of police and metro e. t. c. for cities
Griffin Barnett
01:11:29
Maxim, I’m sorry but nothing about the changes has any impact to geoTLDs as a sub-category of all gTLDs
Greg Shatan
01:11:41
i was also involved in the original PDDRP drafting and my recollection is the same as Jeff’s.
Marie Pattullo
01:11:48
Please read the comments above replying to that, Maxim. Not the case.
Maxim Alzoba
01:11:57
making available for registration is a vehicle
Rebecca Tushnet
01:12:12
How do you think the provision operates, then? Can someone who hasn't suffered infringement bring a claim just because they've been offered an extortionate price? In other words, what is required currently?
Maxim Alzoba
01:12:27
compliance actions are extremely formal, this does not have any safeguards
David McAuley (Verisign)
01:12:34
What about section 5 which states: 5.1 The mandatory administrative proceeding will commence when a third-partycomplainant (“Complainant”) has filed a Complaint with a Provider asserting that theComplainant is a trademark holder (which may include either registered or unregisteredmarks as defined below) claiming that one or more of its marks have been infringed, andthereby the Complainant has been harmed, by the registry operator’s manner ofoperation or use of the gTLD.
Claudio DiGangi
01:12:41
@PHil, we have that on Recommendation #2 already
Cyntia King (USA)
01:12:42
I support the concept that: There should be a complaint mechanism against Registries create barriers for TM owners to use the new RPMs to protect their marks.
Alan Woods (Donuts)
01:13:11
Jeff … drafting expertise aside, the interpretation of the text and how it is functionally applied, and or used by those undertaking such a use, is where the issue lies not in the intention of the drafters - one needs just listen to IRTs these days!
Marie Pattullo
01:13:14
"the ROs' bad faith intent to profit from the systematic..." comes before that, Maxim.
Griffin Barnett
01:13:16
@Maxim not sure how you can say this has no safeguards when the entire PDDRP is limited to a very strict standard of proof and gets decided by an independent panel
Maxim Alzoba
01:13:34
without a proper safeguards this suggestion is Damaging for security and safety of the internet, it can kill almost all geo tlds
Claudio DiGangi
01:13:39
We have already reached consensus that contractual changes are needed to the contract. That bares on the standard of support
Jeffrey Neuman
01:13:39
The standing would only require that someone has actually registered the name other than the trademark owner where someone can make a colorable claim against the registrant.
Julie Hedlund
01:13:44
hand up
Jeffrey Neuman
01:13:50
It doesn't require that there is ACTUAL INFRINGEMENT
Marie Pattullo
01:13:58
No Maxim, it absolutely does not.
Maxim Alzoba
01:14:02
the wording fits current procedures of geo tlds
Jeffrey Neuman
01:14:16
So yes, a brand owner would have to have had its name registered by a third party before it can bring its action
Jeffrey Neuman
01:14:31
that doesn't change with the changes in the language of the proposal
Jeffrey Neuman
01:14:32
at all
Griffin Barnett
01:14:35
@Maxim, AGAIN, nothing about the changes would some how per se block the practices you’ve been describing by geoTLDs
Maxim Alzoba
01:14:37
city mayors office is a such third party
Maxim Alzoba
01:15:03
if it is not explicit ly excluded
Marie Pattullo
01:15:09
Maxim - this is about BAD ACTORS. You aren't a bad actor.
Maxim Alzoba
01:15:14
from these wordings
Griffin Barnett
01:15:24
Maxim, again, sorry but you’re just wrong
Jeffrey Neuman
01:15:28
We cant read a standing requirement as setting the actual cause of action itself
Lori Schulman
01:15:29
Agree there has to be bad intent.
Griffin Barnett
01:15:31
You are not reading the policy
David McAuley (Verisign)
01:16:04
But Jeff if one does not have standing then they cannot bring a TM-PDDRP action, no?
Jeffrey Neuman
01:16:22
To have standing all you need to do is ALLEGE a colorable claim of infringement
Maxim Alzoba
01:16:41
it is up to a panelist, and at the stake - multi million investment of a registry and huge scandal including local legislation initiatives tearing into internet regulations as a retaliation
Greg Shatan
01:16:50
Thar would not support a complaint about a city using “police” for the police.
Jeffrey Neuman
01:17:03
And you can do that when someone other than the brand owner registers the name and you as the trademark owner were essentially prevented from registering it during the Sunrise at an exhorbitant price
Maxim Alzoba
01:17:32
@Greg, the text does not say that it is not applicable to city entites
Griffin Barnett
01:18:00
Maxim - but it requires proving bad faith
Griffin Barnett
01:18:12
That shields registries from the legitimate activities you have desfribed
Jeffrey Neuman
01:18:16
So @David - I think the standing requirement would only require that someone other than the brand owner was able to register the domain name
Griffin Barnett
01:18:25
It doesn’t need to specifically carve out every type of legitimate activity
Maxim Alzoba
01:18:28
not in local jurisdiction, in US based panel of ICANN
Greg Shatan
01:18:33
@Maxim, it does not need to.
Paul Tattersfield
01:18:42
Kathy+1 interpretation and intention are very important
Marie Pattullo
01:18:58
So you're suggesting that "bad faith intent to profit from systematic" actions is fine, Maxim? I honestly don't know where you're going here.
David McAuley (Verisign)
01:19:10
Just don't see it Jeff. I see a need for a good faith allegation of infringement and I would stress infringement - all complainst are allegations
Maxim Alzoba
01:19:10
sunrise is more than few - and it falls in systemic
Lori Schulman
01:19:12
This is a policy for extreme cases.
Cyntia King (USA)
01:19:28
@Kathy - if the mindset of drafters is needed, then we should accept the input from Jeff Neuman & others who put the original policy in place.
Claudio DiGangi
01:19:28
We’ve met the standard that changes need to made to the registry agreement. The final report will be incomplete if we do not explain what that means. What is the current status of not letting artificial deadlines interfere with our work product?
Rebecca Tushnet
01:19:44
Jeffrey, "I didn't get the domain name" is not "there was infringement" even in terms of plausibility/colorability.
Rebecca Tushnet
01:19:58
But *if it is* then what does this change do?
Steve Levy
01:20:06
I think the larger concept that this policy is only designed to address patterns of conduct should not be lost in this discussion.
Claudio DiGangi
01:20:29
Rebecca, do you have proposed language to implement Recommendation 2?
Greg Shatan
01:20:31
Rebecca, I don’t believe anyone has made that claim.
Cyntia King (USA)
01:21:02
+1 @Steve Levy
Marie Pattullo
01:21:26
Excellent point, Steve.
Claudio DiGangi
01:21:28
I’m only asking because I would value your input/expertise on the topic, and I’m curious if you have thought of language
Claudio DiGangi
01:21:37
@rebecca
Jeffrey Neuman
01:21:40
@Rebecca - I think the significant change is not the one on the screen now, but rather the change below about offering an example of "bad faith" systemic behavoir
Cyntia King (USA)
01:22:06
Exactly @Jeff Neumann
Jeffrey Neuman
01:22:14
Can someone scroll down to the second change
Claudio DiGangi
01:22:26
if we can’t agree on the language, we can’t leave to the IRT
David McAuley (Verisign)
01:23:06
agree with Claudio - this is not something to throw to IRT IMO
Claudio DiGangi
01:23:08
So I encourage those who have concerns to put forward solutions
Jeffrey Neuman
01:23:35
Remember, the PDDRP is a hodgepodge policy that was trying to emulate the UDRP but on a systemic level. Just like infringement is not required under the UDRP, it is not required to show trademark infringement here
Rebecca Tushnet
01:24:00
Thanks, Claudio. I have not sat down and tried to draft but I see us coming very hard up against "don't specify pricing schemes." I think there might be something possible with some of the specific scenarios that actually happened but I'm not sure we should try to draft to cover all possible schemes.
Rebecca Tushnet
01:24:16
On what's on screen: I don't really understand the sentence construction. Is something missing?
Jeffrey Neuman
01:24:16
And again, 12 years ago when I drafted this, I was the biggest protector of the Contracted Parties (and sat alone in doing so).
Griffin Barnett
01:24:28
If we instead add implementation guidance for Sunrise Rec 2 that the IRT should consider changes to the PDDRP as a means of implementing/enforcing RA amendments based on Rec 2
Jeffrey Neuman
01:24:32
I was their solely elected rep.
Jeffrey Neuman
01:25:01
And I can honestly tell you that the proposed changes I see do not drastically change the nature or the character of the policy.
Paul McGrady
01:25:12
Yes please
Lori Schulman
01:26:16
@Zak - you have a tough issue to follow.
Greg Shatan
01:28:02
With apologies, I need to drop. Bye all!
Kathryn Kleiman
01:30:56
Isn't this an issue on which we have already opined?
Jeffrey Neuman
01:31:19
Thanks all...I need to drop as well. But happy to have some time again to participate ;)
Kathryn Kleiman
01:31:20
We just had a recommendation about language. Can Staff assist?
Julie Hedlund
01:32:03
@Kathy: No other recommendation is referenced, so staff doesn’t think this is related.
Griffin Barnett
01:33:06
No - Kathy raises a good point - I also thought there was a rec about shifting the language requirement to language of the registration agreement, to bring in line with UDRP
Griffin Barnett
01:33:24
But perhaps it was still a individual proposal rather than a rec (although I think we agreed to adopt it as a rec)?
Kathryn Kleiman
01:35:29
I don't think we decided in favor of the language of registration agreement
Kathryn Kleiman
01:35:35
given that the registry might not know it.
Cyntia King (USA)
01:37:50
+1 @Kathy
Griffin Barnett
01:38:00
Sure, seems fine to me as well
Kathryn Kleiman
01:38:13
Add guidance to the guidance :-)
Julie Hedlund
01:38:22
@Phil: Yes, staff does.
Cyntia King (USA)
01:39:59
Are the Providers not doing this already?
Griffin Barnett
01:40:38
@Cyntia - I think some are but I think the goal is to have all urs providers do so
Cyntia King (USA)
01:41:43
I guess I haven't visited website of the one that isn't
Kathryn Kleiman
01:44:20
Rec #6 went in a different direction...
Paul McGrady
01:44:39
@Staff - can you please send out a Doodle for the next call of the TM-PDDRP small team for sometime next week after the holiday? Thanks! Also, can you include Griffin in the Doodle? I'm hoping he can join to help us flesh out the implementation guidance option he introduced.
Paul McGrady
01:44:47
Thanks!
Julie Hedlund
01:45:05
@Paul: Noted — staff will take that action.
Kathryn Kleiman
01:45:05
hand up
Kathryn Kleiman
01:47:11
and easier at this point :-)
Kathryn Kleiman
01:49:07
support Subgroup B's finding
Cyntia King (USA)
01:51:41
@Zak - best kind of recommendation IMO, no action needed
Kathryn Kleiman
01:51:44
support Subgroup B's finding.
Marie Pattullo
01:56:04
There are also SME TM owners in the global south.
Kathryn Kleiman
01:56:12
Tx to Zak and Subgroup B
Kathryn Kleiman
01:56:16
Tx to Phil for chairing!!!
Maxim Alzoba
01:56:42
bye all
David McAuley (Verisign)
01:56:44
Thanks Phil, Paul, Zak , staff and all