MarkMonitor joined colleagues from around the world once again in June to participate in ICANN 56, held in Helsinki, Finland. This was the first “Policy Forum” style ICANN meeting, a shorter and (potentially) more focused meeting structure dedicated to community work on ICANN policies as well as cross-constituency dialogue. Overall, the new structure was well received; a number of fruitful discussions and meaningful results contributed to a feeling of accomplishment and progress.
Here are our highlights from the meeting.
New gTLD Subsequent Rounds
The New gTLD Subsequent Rounds Policy Development Process (PDP) Working Group is holding weekly meetings, and have finalized five separate “work tracks” (plus “overarching subjects”) for the group to examine in tandem. As outlined during the community session overview of the work of the PDP Working Group, they are:
- Overarching Subjects: Should there be additional gTLDs? Should there be more differentiation/categorization (e.g.: Geos, .BRANDs, Community TLDs) and how should the group handle these categorizations? How should the community assess future rounds? Additional topics: Predictability, community engagement, application numbers, etc.
- WT1: Process/Support/Outreach: Topics for consideration include: Applicant Guidebook (AGB), Clarity of the Application Process, Application Processing (Rounds?), Accreditation Programs (expanding options for technical service and Escrow providers), Systems (how can the systems around the application process be more user friendly?), Application fees (accuracy of cost estimates to reality and developing a better cost model), Support for Applications from Developing Countries
- WT2: Legal/Regulatory: Topics for consideration include: Reserved Names List, Registry Agreement, Public Interest Commitments, Registrant Protections, Contractual Compliance, Registry/Registrar Integration, Registrar Non-Discrimination, TLD Rollout, Public Interest, IGOs/INGOs, Closed Generics, etc.
- WT3: String Contention, Objections, Dispute Resolution: Topics for consideration include: Freedom of expression vs. restrictions (such as GAC Advice, community processes, reserved names), String Similarity Evalutions, Objections (standing, fees, consolidation, appeals, oversight), Role of the Independent Objector, Accountability Mechanisms, Community Applications and Community Priority Evaluations.
- WT4: IDNs, Technical & Operational: Topics for consideration include: Universal Acceptance, Security and Stability, Applicant Reviews, Name Collision
- WT5: Operational Implementation Guidance (Subjects TBD): The group is currently soliciting volunteers for each work track among active members of the PDP. Interested community members can join here.
In addition to splitting up the group to get down to work in earnest, the Subsequent Rounds Working Group heard updates about several working groups which will either impact the group, or upon which parts of the group’s work will be based, including the Consumer Choice, Competition and Trust Review Team (CCT) and the Cross-Community Working Group on the use of country and territory names. An updated timeline was presented to meeting attendees, which suggests that the Initial Report for community comment may be published at the end of 2017.
Rights Protection Mechanism (RPM) Review
The RPM Review PDP is underway with an examination of the Trademark Post Delegation Dispute Resolution Procedure (TM PDDRP), the first of a series of RPMs to be discussed during Phase One of the review. (Phase Two will focus on the Uniform Dispute Resolution Policy – UDRP.) Other RPMs up for examination in Phase One include the Trademark Clearinghouse (TMCH), Sunrise and Trademark Claims Service and the Uniform Rapid Suspension System (URS).
The RPM PDP leadership team led two discussions in Helsinki, a community overview and a PDP Working Group meeting. Brand owner concerns were solicited for the groups consideration during the development of the Revised Report on Rights Protection Mechanisms in 2015 and include concerns about premium pricing, reserved names and blocking, all issues that should be discussed under the umbrella of the topics listed above (mostly likely during the discussion about Sunrise registration). Review of the URS, widely criticized for its high burden of proof and its remedy (suspension rather than transfer), will also be of interest to brand owners. The Working Group will also consider overall issues such as reviewing the RPMs ability to fulfill the original policy rational for RPMs and whether additional RPMs should be considered.
The final report of Phase One is expected at the end of 2017, and will inform the New gTLD Subsequent Rounds initial report. Phase Two is expected to begin in 2018.
Whois/Registration Directory Services
The final report of the Privacy and Proxy Services Accreditation Issues (PPSAI) PDP Working Group was once again a hot topic at ICANN. The final report contains recommendations for facilitating communication between registrants protected by a privacy shield and third party requesters such as brands and consumer protection and IP enforcement agencies. It also contains recommendations about disclosing the information, with several safeguards in place for the protection of private and sensitive information. It is widely seen as a step in the right direction toward balancing privacy interests and legitimate interests in obtaining registration information.
The Governmental Advisory Committee (GAC), who had deferred approval of the final report at ICANN 55 in Marrakech, held a special session in Helsinki dedicated to examine the three outstanding issues that they had identified as requiring further exploration. The three remaining issues were discussed among governments during an open community sessions. Those include: concerns about transparency in relation to websites that solicit commercial transactions; jurisdiction; and law enforcement investigations. The GAC Communiqué went short of recommending approval of the final report, but conceded that government and law enforcement concerns could be addressed during the implementation phase of the PPSAI policy. The implementation phase is imminent, with this last roadblock out of the way.
The Registration Directory Services (RDS) PDP Working Group also held sessions in Helsinki, still focused on identifying those issues that the group will later explore and debate in detail. The current focus is on identifying possible use cases, or purposes, for collecting registration data, a mix of technical and business issues taking center stage. The hope is that these potential use cases will inform the group about what standards of privacy or accessibility are appropriate in each case, since privacy law largely depends on an examination of context.
Specification 11: ICANN’s Role in Abuse Mitigation
In April, ICANN’s Intellectual Property Constituency (IPC) wrote the ICANN Board to seek clarification of a statement that read in part that piracy, copyright infringement, counterfeting and fraudulent and deceptive practices “unrelated to domain name registrations” appear to be “outside [ICANN’s] mandate”. Among their concerns were how this statement affects ICANN’s ability and willingness to enforce the contractual obligation of New gTLD Registries to address these four forms of abuse, as outlined in Specification 11 of the Registry Agreement.
The issue was a hot topic in Helsinki, as abuse reporting and the potential obligations (and voluntary practices) of the contracted parties (Registrars and Registries) to address abuse have been for the last several ICANN meetings. The ICANN Board responded to the IPC that the language of Specification 11 only required Registries to include a provision in the Registry-Registrar Agreement prohibiting Registered Name Holders from “distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law…”, and, to the interest of many, ICANN’s obligations stop at the inclusion of the provision in the RRA. Whether or not registrars are prohibiting such behavior or imposing the consequences as required by Specification 11 is not, in the ICANN Board’s opinion, within ICANN’s mandate.
The community is understandably split on where to go from this narrow reading of the obligations imposed by the current Registry Agreement, and this will likely remain a point of discussion moving forward. The balancing act between concern about “content policing” through ICANN policies and an endorsement and meaningful effort to comply with contractual provisions has been challenging for the ICANN community. Meanwhile, community discussion about Registrar obligations to address complaints of abuse as well as the development of voluntary practices to address abuse complaints among Registries and Registrars continue.
The next ICANN meeting will be held in Hyderabad, India in November 2016 and will follow the 7-day “meeting C” format or the “Annual General Meeting.” The focus will be on ICANN’s impact on the broader global audience and sessions include two public forums (with differing, focused subject matters) as well as cross-community and outreach activities/planning.
MarkMonitor remains involved in all of these initiatives and many more within ICANN. We will continue to keep you posted on news as it develops, and we encourage you to get involved and become active where these issues intersect with your business concerns.
To hear a one-hour webinar on this topic and other ICANN updates with myself and Janelle McAlister, Manager of Global Relationships, click here.