ICANN 58 Recap

Policy Counselor

MarkMonitor joined our internet governance colleagues in Copenhagen, Denmark for ICANN 58 in early March. It’s a busy time for brand owners, as we discussed Subsequent Rounds of the New gTLD Program, Rights Protection Mechanisms, online abuse and Registration Directory Services (Whois) and met with partners about Registry launches, brand concerns and more. It’s a big year for brand owners, with key policy issues on the table for milestone decision-making, and many factors to consider to balance brand interests with other internet governance concerns like privacy, data collection, government positions and infrastructure operations.

For the first time, MarkMonitor was proud to host the DNS Women’s Cocktail, an event that brings female participants and ICANN-community leaders together to support and discuss the voice of women in internet governance. ICANN CEO Göran Marby and ICANN Chairman of the Board Steve Crocker both gave speeches supporting the role of women in the multi-stakeholder internet governance ecosystem. Long-time ICANN Manager of Stakeholder and Advisory Committee Support and Manager of the ICANN Policy Team, Glen de Saint Gery was honored on the occasion of her last ICANN meeting before a well-earned retirement. It was one of the most well-attended DNS Women’s events in ICANN history, and we look forward to continuing to support this important stakeholder-group’s voice.

The policy work of the “big three” working groups (New gTLD Subsequent Procedures, Review of Rights Protection Mechanisms, and Registration Directory Services/Whois) dominated the policy discussions in Copenhagen. Here are the highlights of each:

New gTLD Subsequent Procedures
While brands continue to grasp the consequences that came with the launch of the new gTLD program in 2012, the ICANN community is going full-steam-ahead with discussing subsequent rounds of the new gTLD program. As a reminder, the working group is currently divided into “work tracks” and “overarching issues.” Work tracks are addressing the following issues: (1) Overall process, support and outreach, (2) Legal/Regulatory/Contractual Obligations, (3) String Contentions/Objections & Disputes and (4) International Domain Names/Technical & Operational. Overarching issues include concerns about whether we should continue to expand the new gTLDs, predictability, TLD types (e.g.: community, geographic, etc.), variable fees and other threshold concerns.

In Copenhagen, the main focus of the face-to-face meeting was to review and discuss the questions that will be posed of the larger ICANN-community (any interested parties or stakeholders, whether you’re involved in the group or not, are invited to participate) through a just-released and open-for-public-comment questionnaire entitled “Community Comment 2.” The questionnaire is lengthy and covers topics ranging from application concerns, to Registry Agreement, reserved names, registrant protections, closed generics, public interest, legal rights objections, government concerns, geographic names, and more. Stakeholders, including brand owners, are encouraged to review and answer any questions that relate to their concerns about the new gTLD program, for further evaluation by the working group.

Review of Rights Protection Mechanisms
The RPM review working group is currently focusing on evaluating the Trademark Clearinghouse, a repository of trademark owner rights that seek to prequalify certain terms for sunrise registration in new gTLDs. Some groups have expressed concern about the limits of trademark rights and the applicability of those limits to registration rights provided by recordal in the Clearinghouse. Brand owners who registered marks in the Trademark Clearinghouse should pay close attention to this discussion as the working group grapples with this issue.

The working group spent some time with the operators of the Trademark Clearinghouse to discuss questions that were developed on topics such as education about criteria and process, transparency about operation of the database, verification and updating of TMCH data, cost or recordal and access/accessibility of Clearinghouse records (which may result in the publication of brand owner domain protection strategy, a big concern of brand owners). Other topics of discussion included breadth and reach of TMCH validated marks (protection of design marks, classes of goods/services, geographic indications, typographical variations or marks, etc.), and finally balancing trademark rights with legitimate non-trademark owner interests in use of the same words.

Registration Directory Services/Whois
The PDP working group for Registration Directory Services (RDS, currently Whois) continued to discuss what the fundamental requirements for collecting and accessing registration data are with the goal of developing a new policy framework and a next-generation directory services that, if needed, would better serve these fundamental requirements. Access to registration data is a key component to fighting domain abuse, and is an important issue for consumer protection advocates, brand owners and law enforcement, to name a few key stakeholders. Other issues for consideration include privacy rights, data collection and retention laws and other protections designed to protect personal information.

The RDS working group is currently deliberating the over-arching purpose(s) of collecting, maintaining and accessing “thin data,” that is limited data, primarily technical in nature like the name of the registrar, Whois and name servers and information such as creation and expiration dates.

In Copenhagen, the RDS group and larger ICANN-community heard from the Data Protection Unit of The Council of Europe on privacy and data protection implications of processing RDS/Whois data and access of personal data by third-parties. The RDS group had compiled a number of questions for the data commissioners on: (1) purpose, (2) data elements, (3) criminal/abuse investigations, (4) personal privacy/human rights, (5) jurisdiction, (6) compliance with applicable laws and (7) consumer protection. The data commissioners promised the working group answers to all the questions for further discussion after the public meeting.

Privacy/Proxy Services Accreditation
The Privacy/Proxy Service Accreditation Implementation Review Team (PPSAI IRT) continued their discussion on accreditation requirements for Privacy/Proxy service providers as well as the disclosure process. In January, the IRT elected to adopt a faster timeline in light of the expiration of the 2013 RRA interim Specification on Privacy and Proxy Registrations. The current timeframe has the accreditation process complete by January 2018.

The disclosure process will be a critical part of brand enforcement as it will allow IP holders to request the whois information behind the privacy/proxy details. The IRT is considering who can submit requests, what does the request need to include and what is a Privacy/Proxy service provider required to action.

The PPSAI IRT team is currently made up of 40 members, most of which are Registrars. We would strongly encourage brand holders to participate in this group by emailing your interest to the GNSO Secretariat at gnso-secs@ICANN.org.

Geographic Terms
Another hot topic in Copenhagen was the government proposal about the use of geographic terms for future rounds of new gTLDs, as the Governmental Advisory Committee (GAC) Geo-names Working Group released its most recent draft proposal for community review and discussion in Copenhagen.

At first blush, this issue may not seem to have broad significance to the greater brand and consumer protection community, however, the proposal, which seeks to preserve rights of any name with “geographic significance” to governments (notwithstanding legal principles like trademark law or the laws governing geographic indications) will have wide significance to how trademark and other laws are taken into consideration in ICANN policies.

The proposal gives GAC members (representatives of certain government agencies to ICANN) the right to place any terms of “geographic significance” on an ever-evolving list with only a justification (not a concrete legal analysis) required, triggering requirements to consult with governments, request permission/non-objection for use and submit to dispute resolution where non-objection isn’t obtained. Legal rights such as trademark rights are one of many issues taken into consideration with respect to the use of these terms in the gTLD program, which is problematic for the brand community, to say the least.

The cross-community working group on the use of country and territory names also just released an interim report of their findings on these same issues, and that is currently open for public comment. Based on a public presentation of the CCWG to the GAC in Copenhagen, some work is needed to reconcile the thoughts of the GAC and the conclusions on the community in the interim report.

Other topics of discussion in Copenhagen relevant to brand owners included discussions about abuse mitigation including the role of restricted TLDs and the role of the Public Safety Working Group as well as further discussion about Registrar and Registry voluntary practices to address abuse complaints. The Public Safety Working Group hosted the Association of Safe Online Pharmaceuticals (ASOP) at a session where they presented a Registry and Registrar award for combating abuse online related to illegal pharmaceuticals to Theo Geurts of Realtime Register and Statton Hammock of Rightside.

For more in-depth information about these issues and more about what we learned at ICANN 58 in Copenhagen, including an update on the current new gTLD launches, please attend our ICANN 58 Recap webinar on April 5, 2017 at 11 am PT / 2 pm ET. Our policy experts will walk you through the important issues for brand owners and how to get involved. Register here to attend.

To get involved in the various groups at ICANN directly, visit the following websites:

ICANN Intellectual Property Constituency: www.ipconstituency.org

ICANN Business Constituency: www.bizconst.org

Brand Registry Group: www.brandregistrygroup.org

Domain Name Association: www.thedna.org

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