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hello all, sorry for being late

hand up

Hello. I apologize for being late.

12 minutes have gone by and we haven't discussed the substance ;)

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.

+1, Jeff. Can we not just discuss it now?

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).

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.

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.

I really am not following Maxim’s logic here

Bad Faith is still required

But why would that have any "bad faith"?

Likewise, I don't understand

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

I don't think that would be bad faith if they have a legal obligation to given the names out to others

@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.

As Jeff noted, the other elements of the PDDRP apply….. bad faith, intent to unfairly take advantage of a mark, etc.

(And Paul)

my connection fell off

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

Maxim - that would not run afoul of the PDDRP

BC there are elements of bad faith, etc built into the PDDRP

Rebecca, respectfully, you are reading into the TM-PDDRP American ideas and case law.

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.

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.

and police is a TM

"Police" is a trademark within context of music. Not law enforcement.

TM owners have to prove their case.

new hand

All the proposal does is make it clear that it applies to both pre-registration and post-registration activities. Its very simple.

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.

@Lori, formally it is applicable to this text

Only if the RO acts in this bad way, Maxim.

Maxim, I don't think so because of the elements of the policy.

@Maxim - no. Your concern is literally overcome by the other elements of the PDDRP. You cannot take one sentence fragment in a vacuum

note, General availability is not constant price, it might have Landrush with prices higher than after it

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

oh, I agree it should go out for public comment

I'm confused - we are talking about the ability to raise a complaint for investigation, right?

No, I don't think "everything under the sun is bad faith" - quite the contrary, TBH,

Welcome new visitors!

I don't recall discussing this 3 years ago in context of PDDRP.

@Jason - not all contracted parties would object

@Lori - we didn't.

Can I ask which language specifically is the added language that people have difficulties with

Only the highlighted language?

what happend to .feedback?

For clarity, again, the yellow is only the new text from the last version we looked at.

Sounds like most everyone is saying it goes to public comment.

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?)

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

the suggested text has more than one issue

Sorry, I am missing the re-orientation

What has been re-oriented

it is more than 3 problems, not only pricing, also wild qualification s of what is bad

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

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

@Kathy: Procedurally the WG and Co-Chairs can agree to seek comment on the proposal, even if there isn’t broad support either way.

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).

@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.

why some people

not all

Please lower old hands. Thanks

@Jeff, I think people were quite clear I what is wrong herem

@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.

last time there were words that the last time was really last extension (at council)

David, hope you enjoyed the vacation!

I was the one initially responsible for drafting the PDDRP way back in 2009-2010, so I am more than familiar with this policy

Thanks Claudio, any vacation is good ;-)

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 :)

That last comment was @David

But I see us talking about an RPM and it applies as it does unless we explicitly limit it, I would think, Claudio

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)

Section 5 on standing is the infringement part as I recall

@David e.g. PPDRP doesn’t apply to .com , .net

Correction, "trademark infringement" doesn't show up until (iii)

Clearly people disagree, Jeff

Phil is right: the standing provision is independent of (i)-(iii). That was a constraint on the whole thing.

Phil - that is an incorrect interpretation

formally it kills GEOtlds

Especially as I was the one who drafted it

But, you can all tell me I am wrong

How, Maxim?

well described case of police and metro e. t. c. for cities

Maxim, I’m sorry but nothing about the changes has any impact to geoTLDs as a sub-category of all gTLDs

i was also involved in the original PDDRP drafting and my recollection is the same as Jeff’s.

Please read the comments above replying to that, Maxim. Not the case.

making available for registration is a vehicle

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?

compliance actions are extremely formal, this does not have any safeguards

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.

@PHil, we have that on Recommendation #2 already

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.

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!

"the ROs' bad faith intent to profit from the systematic..." comes before that, Maxim.

@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

without a proper safeguards this suggestion is Damaging for security and safety of the internet, it can kill almost all geo tlds

We have already reached consensus that contractual changes are needed to the contract. That bares on the standard of support

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.

hand up

It doesn't require that there is ACTUAL INFRINGEMENT

No Maxim, it absolutely does not.

the wording fits current procedures of geo tlds

So yes, a brand owner would have to have had its name registered by a third party before it can bring its action

that doesn't change with the changes in the language of the proposal

at all

@Maxim, AGAIN, nothing about the changes would some how per se block the practices you’ve been describing by geoTLDs

city mayors office is a such third party

if it is not explicit ly excluded

Maxim - this is about BAD ACTORS. You aren't a bad actor.

from these wordings

Maxim, again, sorry but you’re just wrong

We cant read a standing requirement as setting the actual cause of action itself

Agree there has to be bad intent.

You are not reading the policy

But Jeff if one does not have standing then they cannot bring a TM-PDDRP action, no?

To have standing all you need to do is ALLEGE a colorable claim of infringement

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

Thar would not support a complaint about a city using “police” for the police.

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

@Greg, the text does not say that it is not applicable to city entites

Maxim - but it requires proving bad faith

That shields registries from the legitimate activities you have desfribed

So @David - I think the standing requirement would only require that someone other than the brand owner was able to register the domain name

It doesn’t need to specifically carve out every type of legitimate activity

not in local jurisdiction, in US based panel of ICANN

@Maxim, it does not need to.

Kathy+1 interpretation and intention are very important

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.

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

sunrise is more than few - and it falls in systemic

This is a policy for extreme cases.

@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.

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?

Jeffrey, "I didn't get the domain name" is not "there was infringement" even in terms of plausibility/colorability.

But *if it is* then what does this change do?

I think the larger concept that this policy is only designed to address patterns of conduct should not be lost in this discussion.

Rebecca, do you have proposed language to implement Recommendation 2?

Rebecca, I don’t believe anyone has made that claim.

+1 @Steve Levy

Excellent point, Steve.

I’m only asking because I would value your input/expertise on the topic, and I’m curious if you have thought of language

@rebecca

@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

Exactly @Jeff Neumann

Can someone scroll down to the second change

if we can’t agree on the language, we can’t leave to the IRT

agree with Claudio - this is not something to throw to IRT IMO

So I encourage those who have concerns to put forward solutions

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

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.

On what's on screen: I don't really understand the sentence construction. Is something missing?

And again, 12 years ago when I drafted this, I was the biggest protector of the Contracted Parties (and sat alone in doing so).

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

I was their solely elected rep.

And I can honestly tell you that the proposed changes I see do not drastically change the nature or the character of the policy.

Yes please

@Zak - you have a tough issue to follow.

With apologies, I need to drop. Bye all!

Isn't this an issue on which we have already opined?

Thanks all...I need to drop as well. But happy to have some time again to participate ;)

We just had a recommendation about language. Can Staff assist?

@Kathy: No other recommendation is referenced, so staff doesn’t think this is related.

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

But perhaps it was still a individual proposal rather than a rec (although I think we agreed to adopt it as a rec)?

I don't think we decided in favor of the language of registration agreement

given that the registry might not know it.

+1 @Kathy

Sure, seems fine to me as well

Add guidance to the guidance :-)

@Phil: Yes, staff does.

Are the Providers not doing this already?

@Cyntia - I think some are but I think the goal is to have all urs providers do so

I guess I haven't visited website of the one that isn't

Rec #6 went in a different direction...

@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.

Thanks!

@Paul: Noted — staff will take that action.

hand up

and easier at this point :-)

support Subgroup B's finding

@Zak - best kind of recommendation IMO, no action needed

support Subgroup B's finding.

There are also SME TM owners in the global south.

Tx to Zak and Subgroup B

Tx to Phil for chairing!!!

bye all

Thanks Phil, Paul, Zak , staff and all