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1 Fial Issue Report o a Policy Developmet Process to Review All Rights Protectio Mechaisms i All Geeric Top- Level Domais Status of This Documet This Fial Issue Report has bee drafted by ICANN Policy Support Staff ad submitted to the GNSO Coucil for its cosideratio. Summary O 15 December 2011, the GNSO Coucil requested that eightee (18) moths after the lauch of the New gtld Program ICANN staff prepare ad publish a Issue Report o the state of all rights protectio mechaisms implemeted for both existig ad ew gtlds, icludig but ot limited to the UDRP ad URS. The Coucil subsequetly agreed to exted the timelie for a report by a further six (6) moths. This Issue Report is the result of that request.

2 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Table of Cotets 1 EXECUTIVE SUMMARY 3 2 OBJECTIVE 8 3 BACKGROUND 10 4 PROCEDURAL MATTERS AND STAFF RECOMMENDATION 25 5 NEXT STEPS 29 ANNEX A WORKING GROUP CHARTER 30 ANNEX B LIST OF POTENTIAL ISSUES FOR REVIEW 35 ANNEX C OVERVIEW FOR 2-PHASED PDP AND COORDINATION WITH PDP ON NEW GTLD SUBSEQUENT ROUNDS 40 Page 2 of 41

3 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary Executive Summary 1.1 Backgroud I referrig to rights protectio mechaisms (RPMs), this Issue Report is cocered with those policies ad processes, developed i cosultatio with the ICANN commuity, aimed at combattig cyber-squattig ad providig workable mechaisms for trademark owers to either prevet or remedy certai illegitimate uses of their trademarks i the domai ame system (DNS). The first such mechaism, the Uiform Dispute Resolutio Policy (UDRP) 1, has bee i effect as a ICANN Cosesus Policy 2 sice A umber of additioal RPMs were developed subsequetly to supplemet the UDRP as part of the New gtld Program, lauched i These additioal RPMs are: a. The Trademark Clearighouse (TMCH) 3, which autheticates global rights iformatio, maitais a cetralized database of these, ad provides this iformatio to registries ad registrars durig the domai ame registratio process i all gtlds lauched uder the New gtld Program. Verified data from the TMCH supports the additioal protective mechaisms available durig the Surise ad Trademark Claims service periods. 4 b. The Uiform Rapid Suspesio System (URS) 5, which is modeled o the UDRP ad aims to provide a trademark holder with a fast ad reasoably iexpesive way to obtai the suspesio of a domai ame that was registered ad used i bad faith. c. The Post-Delegatio Dispute Resolutio Procedures (PDDRPs) 6, which provide alterative aveues for a trademark holder who is harmed by a ew gtld registry operator s coduct to obtai redress. 1 See 2 All gtld registry operators ad ICANN-accredited registrars are cotractually obliged to comply with Cosesus Policies that are developed by ICANN through commuity cosesus. Aex A of the ICANN Bylaws outlies the Policy Developmet Process that has to be complied with to develop Cosesus Policies withi the GNSO: More specifically, the 2013 Registrar Accreditatio Agreemet (which is the cotract betwee ICANN ad all ICANN-accredited registrars) defies Cosesus Policies as those policies that are established i accordace with the ICANN Bylaws ad due process, ad that relate to certai specific topics, icludig the resolutio of disputes relatig to the registratio of domai ames (see All curret ICANN Cosesus Policies ca be accessed here: 3 See 4 For a updated list of the various periods ad their dates, see 5 See 6. See Page 3 of 41

4 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 The UDRP has ot udergoe ay substative review sice its iceptio, ad a 2011 GNSO commuity discussio to determie whether or ot such a review should be coducted resulted i the GNSO Coucil s decisio that a review should more appropriately be coducted i tadem with oe for the ew gtld RPMs 7. The GNSO Coucil therefore resolved i December 2011 to request a Issue Report o the state of all RPMs for both existig ad ew gtlds, for publicatio eightee (18) moths followig the delegatio of the first gtld i the New gtld Program. Further to a staff request, the Coucil agreed to exted the timelie for delivery of a report by six (6) moths. I February 2015, commuity feedback was solicited for those RPMs developed for the New gtld Program via a ICANN staff paper 8. The aim of the exercise was to allow the ICANN commuity to assess the effectiveess of safeguards i meetig their iteded rights protectios objectives i the New gtld Program, ad idetify areas where additioal policy developmet or implemetatio improvemets might be beeficial. Followig the receipt ad review of commuity commets, ICANN staff published a revised Rights Protectio Mechaism Report (RPM Staff Paper) i September I additio to feedig ito other review processes to evaluate the operatioal effectiveess of the New gtld Program, the aalysis ad feedback provided by the RPM Staff Paper was explicitly iteded to also iform this specific Issue Report ad the deliberatios of the GNSO Coucil over whether or ot to iitiate a Policy Developmet Process (PDP) to review all the RPMs at this time. Followig the publicatio of the Prelimiary Issue Report i October 2015 for public commet, ICANN policy support staff aalysed the commets received ad updated the report. This updated Fial Issue Report is beig set to the GNSO Coucil for its cosideratio ad further actio, as appropriate. 1.2 Discussio of the Issue The UDRP has bee the subject of a GNSO Issue Report, published i February (prior to the delegatio of the first gtld uder the New gtld Program, which occurred i October 2013). Commuity feedback i respose to this Issue Report was largely to the effect that the UDRP provides a comparatively quick ad effective recourse for disputed secod level domai ame registratios i the globalized ad tras-jurisdictioal world of the DNS. 11 The primary coclusio i the Fial Issue Report, published i October 2011 ad based o a review of the commuity commets received, was that a review of the UDRP should ot be coducted util 7 See 8 The iitial staff paper ad public commets ca be viewed here: 9 See 10 See 11 See the Fial Issue Report o the Curret State of the UDRP (October 2011), Sectio 5. Page 4 of 41

5 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 eightee (18) moths after the lauch of the URS. A review could the be based o data derived from the use of the URS, sice it is modeled o the UDRP 12. October 2013 saw the delegatio ito the Iteret root zoe of the first gtld uder ICANN s New gtld Program 13. The TMCH opeed for submissio of trademark records i March , while the URS saw its first complait filed i August Available data ad commuity feedback relatig to these ad the other ew gtld RPMs were summarized i the updated RPM Staff Paper, published i September It is importat to ote at the outset that, to date, there has bee o overall iitiative that has sought to review i combiatio the effectiveess of all these RPMs i meetig their stated objectives. There is therefore o curret, comprehesive policy guidace that covers the topic of the use ad effectiveess of RPMs across both the so-called legacy gtlds ad those lauched uder the New gtld Program, or that ca be referred to as a uiform startig poit for the future review ad evolutio of ew or more streamlied RPMs that may be more appropriate. This is because the previous work efforts highlighted above each focused o specific RPMs the October 2011 GNSO Fial Issue Report o the the-curret state of the UDRP (UDRP Report), ad the RPM Staff Paper o those other processes developed for the New gtld Program. Further, the UDRP is a Cosesus Policy, applicable to all gtlds, whereas the ew RPMs were developed to address the overarchig issue of trademark protectio i coectio with the itroductio of ew gtlds 16, followig commuity cosultatios durig the process of implemetig the New gtld Program. These ew RPMs therefore apply oly to gtlds itroduced as part of the New gtld Program. The work of ay PDP reviewig the RPMs at this time is expected to build o prior ICANN ad commuity work o the developmet of these RPMs, icludig the fidigs ad commuity commets provided to the October 2011 UDRP Report ad the more recet September 2015 RPM Staff Paper. A PDP is also expected to take ito accout relevat commets submitted to the public commet forum o the October 2015 Prelimiary Issue Report. There are a umber of other review efforts uderway or plaed withi the commuity that may have a impact o the work of the PDP ad may help iform the PDP Workig Group s deliberatios. Therefore, a PDP eed ot ecessarily be expected to be limited to the subjects idetified i this Issue Report, ad if iitiated should take ito accout the fidigs from parallel efforts exteral to the PDP Workig Group that may be formed for this effort. 12 See the Fial Issue Report o the Curret State of the UDRP, p See ,261 trademark records were submitted to the TMCH betwee its lauch ad the delegatio of the first New gtld (RPM Staff Paper, pp 21-23). 15 Note, however, that this was filed ot agaist a domai ame i a ew gtld but rather i the.pw cctld, whose operator had volutarily adopted the URS: 16 See, e.g., the Board resolutio establishig the Implemetatio Recommedatio Team: Page 5 of 41

6 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary Staff Recommedatio ICANN staff has cofirmed that the proposed issue is withi the scope of the GNSO s Policy Developmet Process. Followig review of commuity feedback received regardig the three optios for a RPM review that were preseted i the Prelimiary Issue Report for public commet, ICANN staff recommeds that the GNSO Coucil lauch a PDP i accordace with what was preseted as the third optio i the Prelimiary Issue Report: amely, to coduct a policy review of all the RPMs i two phases. The iitial phase would focus o a review oly of the RPMs developed for the New gtld Program, ad the secod phase would focus o a review of the UDRP. The secod phase may also iclude ay issues idetified durig the first phase of the PDP that are more appropriately cosidered durig the secod phase. Cumulatively, the results of both phases of the PDP would be a full review of all RPMs developed to date for all gtlds. Note, that staff has provided a summary ad a flow chart of this uprecedeted two-phased approach that ca be foud i Aex C. Staff believes that coductig a stadaloe PDP i two phases to review the RPMs is preferable to foldig i a review of the ew RPMs ito the New gtld Subsequet Procedures PDP. A RPM PDP would result i the first comprehesive review by the GNSO of a logstadig ICANN Cosesus Policy (the UDRP) together with a review of the ew RPMs, ad the likelihood that this PDP will set the framework for other subsequet review work favors the establishmet of such a PDP as a idepedet exercise. Staff recommeds that the work i the iitial phase of the RPM PDP be performed by a stadaloe PDP Workig Group that liaises with the recetly lauched PDP Workig Group o New gtld Subsequet Procedures as there may be overlappig issues arisig durig the work of both groups that would warrat careful coordiatio. Staff does ot recommed foldig i a review of the RPMs that were developed for the New gtld Program ito the scope of work for the New gtld Subsequet Procedures PDP due to the likely complexity ad size of that PDP. To esure timely commuicatio ad effective coordiatio betwee both PDP Workig Groups o issues or mutual relevace, staff recommeds that a commuity liaiso who should ideally be a member of both Workig Groups be appoited by both groups. This recommedatio is also metioed i the summary overview i Aex C. Staff also recommeds that, upo completio of Phase Oe, the PDP Workig Group submits a First Iitial Report to the GNSO Coucil that is also published for public commet. I additio to servig as a status ad progress report o the PDP as a whole, this documet should at a miimum also flag ay issues relevat to Phase Two that the PDP Workig Group recommeds for cosideratio durig a review of the UDRP, ay prelimiary recommedatios the Group iteds to make, ad ay issues or recommedatios that the Group believes should be cosidered by the PDP Workig Group o New gtld Subsequet Procedures. The secod, subsequet phase of work i the RPM PDP would be a review of the UDRP, ideally carried out by the same PDP Workig Group ad based substatially o the cocers specific to its scope that were raised i the 2011 GNSO Issue Report, as updated or supplemeted by issues Page 6 of 41

7 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 idetified durig the public commet forum for the Prelimiary Issue Report for this PDP. Other relevat topics, icludig those potetially derived from the first phase of work cocerig the RPMs developed for the New gtld Program, may also be icluded i the scope of this phase of work. Staff otes that commuity feedback has idicated that this secod phase of work should be udertake i the form of a full PDP ad ot a Expedited PDP. At the ed of the secod phase the PDP WG should publish a Secod Iitial Report that is also put out for public commet. Upo review of all commets submitted, icludig ay remaiig issue that may have bee brought up by the New gtld Subsequet Rouds PDP Workig Group, the PDP Workig Group shall publish its Fial Report ad forward it to the GNSO Coucil for its cosideratio. Staff believes that a beefit of this two-phased approach is a better aligmet of the timig of the work o reviewig the New gtld Program RPMs with the operatioal reviews of the New gtld Program 17 (icludig the CCT Review) ad the PDP o New gtld Subsequet Procedures. Further, as poited out i the Prelimiary Issue Report, the curret workload of the GNSO ad the resultig demad o staff ad commuity resources meas that staggerig the work of reviewig all the RPMs will allow for more meaigful participatio by all iterested parties. This two-proged approach meas, however, that that commuity cosideratios of geeral, overarchig issues cocerig the comprehesiveess of all the RPMs as a set of aggregate protectios for trademark holders i all gtlds. If a PDP to review all the RPMs is lauched, the previous 2011 collatio of commuity commets cocerig a possible review of the UDRP, the more recet compilatio of feedback cocerig provider ad user experieces with the ew RPMs, ad relevat commets submitted to the public commet forum o the Prelimiary Issue Report collectively provide a useful list of issues which could help the PDP Workig Group i plaig its work. This Fial Issue Report cotais a list of specific issues for possible cosideratio i a PDP, derived from topics idetified by the commuity i respose to the UDRP Report, the RPM Staff Paper, ad the public commet forum o the Prelimiary Issue Report (see Sectio ). The full list of issues ca be foud i Aex B. 18 Staff recommeds that this list of issues be provided to the PDP Workig Group as a guide toward framig its work rather tha as a exhaustive ad madatory set of issues to be cosidered. This Fial Issue Report has bee published o the GNSO website ad forwarded to the GNSO Coucil for its cosideratio ad further actio, as appropriate. 17 See 18 Note, the list was updated with additioal questios that were brought up durig the public commet forum o the Prelimiary Issue Report. Page 7 of 41

8 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary Objective 2.1 Submissio This Fial Issue Report is submitted i accordace with Step 2 of the Policy Developmet Process described i Aex A of the ICANN Bylaws Issue The Proposed Issue Raised For Cosideratio As oted above, all the RPMs were developed to provide mechaisms to facilitate the protectio of trademarks i the DNS. Where the UDRP was adopted i 1999 ad applies to all gtlds, the additioal RPMs developed for the New gtld Program do ot apply to the legacy gtlds ad are comparatively ew, havig bee lauched less tha three years ago. I additio, the UDRP is a ICANN Cosesus Policy that is by ature bidig o all gtld registries ad registrars, whereas the ew RPMs were developed durig the implemetatio period for the New gtld Program. The UDRP has ot bee comprehesively reviewed sice its iceptio i Where the ew RPMs are cocered, the fidigs reported i the RPM Staff Paper were explicitly iteded to iform either further policy developmet or additioal implemetatio work (as appropriate). Should the GNSO Coucil decide to vote to iitiate a PDP followig review of this Fial issue Report, this will represet the first time that all the RPMs are beig reviewed by the GNSO The Idetity of the Party Submittig the Request The GNSO Coucil How that Party is Affected by the Issue The RPMs that are curretly i operatio have direct impact o the busiess operatios of Registries ad Registrars ad provide remedies ad recourse for users icludig Registrats. Therefore, the existece, operatio ad effectiveess of the RPMs directly affect all of the GNSO s Stakeholder Groups (SGs) ad Costituecies (Cs). A review of the RPMs ad ay updates or chages that may be recommeded as a result of a GNSO PDP is likely to also be of 19 See: Page 8 of 41

9 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 key iterest to other ICANN Supportig Orgaizatios (SOs) ad Advisory Committees (ACs), as RPMs touch o cosumer protectio ad the rights of users i the DNS Support for the Issue to Iitiate a PDP O 15 December 2011, the GNSO Coucil passed a resolutio requestig that a ew Issue Report o the curret state of all rights protectio mechaisms implemeted for both existig ad ew gtlds, icludig but ot limited to, the UDRP ad URS, should be delivered to the GNSO Coucil by o later tha eightee (18) moths followig the delegatio of the first ew gtld. 21 O 29 Jauary, at the request of ICANN staff, the GNSO Coucil agreed to a extesio of the delivery date of the requisite Prelimiary Issue Report by six moths 22. This Fial Issue Report is based o the October 2015 Prelimiary Issue Report, updated to iclude relevat commuity commets submitted durig the public commet period. 2.3 Scope Based o the recommedatios above, the lauch of a dedicated policy developmet process (PDP) to cosider at least the issues idetified i this Issue Report has bee cofirmed by the Geeral Cousel to be properly withi the scope of the ICANN policy process ad withi the scope of the GNSO. 2.4 Report I accordace with the GNSO PDP rules, the Staff Maager has forwarded this Fial Issue Report, together with a summary of the commets received, to the GNSO Coucil for its cosideratio ad potetial actio. 20 Staff otes that both the GAC ad the ALAC submitted commets to the 2011 Prelimiary Issue Report o the Curret State of the UDRP. Both Advisory Committees had the cautioed agaist lauchig a review of the UDRP at that time, with the GAC further commetig that such a review might be more appropriately doe i light of commuity experieces with the RPMs developed for the New gtld Program. 21 See 22 See Page 9 of 41

10 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary Backgroud 3.1 Process Backgroud The questio of who legally has rights to, or is the legitimate holder of, a domai ame ca be ope to dispute. Sice the Iteret is a global resource ad domai ame holders are dispersed amog umerous differet jurisdictios, fidig a effective, eforceable ad reliable process to resolve rights disputes across various jurisdictios is ot a easy udertakig. Over time, ICANN has developed a umber of dispute resolutio policies ad procedures that attempt to address this issue ad provide eforceable remedies for certai types of disputes cocerig domai ame registratios. These policies are essetially alterative dispute resolutio procedures to court litigatio that evertheless do ot preclude the iitiatio of legal proceedigs i the appropriate jurisdictio. I relatio to domai ame disputes cocerig the registratio ad use of legally protected trademarks, the Uiform Dispute Resolutio Policy (UDRP) is the logest stadig alterative dispute resolutio procedure. 23 I geeral, commuity feedback to date (icludig the public commet forum o the Prelimiary Issue Report) idicates that may believe the UDRP to be a effective ad expediet alterative to more time cosumig ad expesive court litigatio, ad that the UDRP is viewed as reliable, predictable ad cosistet. The effectiveess of the UDRP with regard to disputes i the global DNS has meat that court resolutios of such disputes are rarely sought. 24 As a result of the New gtld Program, several ew rights protectio mechaisms (RPMs) were also developed to mitigate potetial risks ad costs to trademark rights holders that could arise i the expasio of the ew gtld amespace, ad to help create efficiecies for registratio service providers amog gtld lauches. These ew mechaisms were developed i the course of implemetatio of the New gtld Program. They are the Uiform Rapid Suspesio System (URS), the Trademark Clearighouse (TMCH) ad the associated availability through the TMCH of Surise periods ad the Trademark Claims otificatio service, ad the Post-Delegatio Dispute Resolutio Procedures (PDDRPs). 25 Where the UDRP ad URS cover trademark-related disputes arisig over a actual domai ame that has bee registered i the secod level of a gtld (i.e. they are so-called curative mechaisms), the TMCH ad the services provided usig TMCH-verified data such as Surise ad Trademark Claims are iteded to facilitate trademark 23 For a complete backgroud overview o the developmet of the UDRP see the UDRP Report, pp The resposes to the UDRP Questioaire that was distributed to the UDRP service providers as part of feedback to the UDRP Report idicate that, to the providers kowledge, very few UDRP decisios are appealed to a court (e.g. oe case, or.1% from the Asia Domai Name Dispute Resolutio Cetre, fewer tha five per year from the NAF, ad oe from the Czech Arbitratio Court). It should be oted, however, that providers may ot receive otice of all appeals or challeges i court: see UDRP Report, p. 14 footote For a complete backgroud overview o the developmet of these rights protectio mechaisms, see the RPM Staff Paper, pp Page 10 of 41

11 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 owers ability to prevet registratio of domai ames matchig their marks (i.e. these are socalled prevetative mechaisms). Prior to the lauch of the New gtld Program, o 3 October 2011 ICANN staff had published a Fial Issue Report o the curret state of the UDRP. The recommeded course of actio i that UDRP Report was ot to iitiate a PDP at the time, but to hold off lauchig ay such PDP util after the ew URS had bee i operatio for at least eightee (18) moths. Subsequetly, o 15 December 2011, the GNSO Coucil requested that ICANN staff prepare ad publish a ew Issue Report o the curret state of all rights protectio mechaisms implemeted for both existig ad ew gtlds, icludig but ot limited to the UDRP ad URS. This Issue Report is the result of that GNSO Coucil request Uiform Dispute Resolutio Policy (UDRP) The UDRP was created i 1999 to resolve disputes cocerig disputes over etitlemet to domai ames registered at the secod level of the DNS. It is a ICANN Cosesus Policy that is applicable to all gtlds, icludig those lauchig uder the New gtld Program. The uiversal ad uiform operatio of the UDRP is based o two documets: first, the Policy that sets out its scope, relief, ad basis for madatory admiistrative proceedigs that may be brought withi its ambit; ad secodly the Rules that set out the procedural requiremets that must be followed i such a proceedig. To date the UDRP has ot bee ameded ad o complete substative review of the UDRP has take place, although the policy has bee adapted to accommodate ew malpractices (such as phishig, pay per click ad mousetrappig 26 ) that emerged after ICANN s adoptio of the policy i The UDRP Report cocluded that i geeral the UDRP is fuctioig well ad that there has bee well over 30,000 cases decided by experieced UDRP paelists with oly the rarest of the tes of thousads of UDRP decisios successfully challeged i Court. 27 It is oteworthy that a majority of the public commets to that Prelimiary Issue Report requested that the UDRP should be utouched. 28 However, may commeters also poited out several ways i which they thought the procedural aspects of the UDRP could be improved 29 while a few commeters believed that the UDRP should ideed be reviewed 30. Policy-related questios that may be relevat i reviewig the UDRP derived from the commuity feedback are summarized i Sectio below. 26 UDRP Report, p UDRP Report, p UDRP Report, p URDP Report, Aex UDRP Report, p.15. Page 11 of 41

12 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary Uiform Rapid Suspesio System (URS) The URS was desiged as a complemet to the UDRP, ad is iteded to provide trademark owers with a quick ad low-cost process to act agaist those ifrigig o their itellectual property rights ad to combat cybersquattig. I this respect, the substative grouds upo which a trademark holder would file a complait uder the URS are essetially similar to those uder the UDRP 31. Much like the UDRP, trademark holders may iitiate a URS proceedig by electroically filig a complait with a URS provider. The fees associated with a URS proceedig rage from USD Procedurally, oce a trademark holder files a URS complait, the registry operator immediately locks the domai agaist chages. The provider the otifies the registrat agaist whom the complait has bee filed, who has fourtee (14) days to submit a respose. The remedy for a successful URS complait is the suspesio of the domai ame for the balace of the registratio period, with the complaiat s optio to exted that period for oe additioal year. 32 I additio to the differig remedies available to a successful complaiat uder the UDRP (i.e. cacellatio or trasfer of the domai ame) ad the URS (i.e. suspesio of the domai ame), aother area where the URS differs substatially from the UDRP is that of the stadard of proof required to succeed o a claim. Where uder the UDRP the complaiat must prove her case through a prepoderace of the evidece, uder the URS there must be clear ad covicig evidece the reaso for this is that, as a complemet to rather tha a substitute for the UDRP, the URS was expressly desiged to apply oly to clear-cut cases (ofte colloquially referred to i this cotext as slam duk cases). Commuity feedback provided o the URS i respose to the iitial RPM Staff Paper idicates that it ca achieve positive results i certai limited cases [as it] is quick, iexpesive ad caters to those who have slam-duk cases or are idifferet towards the suspesio of the ame solutio, perhaps due to the fact they are uable to register that ame 33. Nevertheless, a umber of commetators also expressed reservatios ad cocers about the curret scope ad operatio of the URS, icludig the stadard of proof, the remedy provided, the time periods for respose ad use of the appellate mechaism. These are summarized i Sectio below Trademark Clearighouse (TMCH) The TMCH is a global database of verified trademark iformatio iteded to support other rights protectio processes such as Surise registratios ad the Trademark Claims service. It opeed for submissio of trademark records i March Beefits of recordig a trademark 31 For a side-by-side compariso of the URS ad the UDRP, see RPM Staff Paper, p See, geerally, RPM Staff Paper, pp. 90 et seq. For more details, see the URS provisios: 33 RPM Staff Paper, p Page 12 of 41

13 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 with the Clearighouse iclude access to Surise registratio with ew gtld registries. This ivolves a iitial period of at least thirty (30) days before domai ames are offered to the geeral public. The Clearighouse also supports a Trademark Claims service that rus for at least the first iety (90) days of geeral registratio. Durig this period, ayoe attemptig to register a domai ame matchig a mark that is recorded i the TMCH will receive a otificatio displayig the relevat mark iformatio. If the otified party evertheless goes ahead ad registers the domai ame, the TMCH will sed a otice to those trademark holders with matchig records i the Clearighouse, iformig them that someoe has registered the domai ame. The TMCH accepts ad verifies iformatio o the followig types of itellectual property rights: (i) atioally or regioally registered trademarks; (ii) court-validated marks; ad (iii) marks protected by statute or treaty (such as geographical idicatios or desigatios of origi). 34 The RPM Staff Paper oted that: Betwee March 2013 ad May 2015, the Clearighouse verified ad accepted for iclusio 32,667 atioally or regioally or registered trademarks, 42 trademarks protected by statute or treaty, ad two court-validated trademarks. 35 Commuity feedback provided o the TMCH i respose to the iitial RPM Staff Paper idicated certai cocers with the operatioal effectiveess of the TMCH 36. I additio, commeters raised a umber of substative questios cocerig the scope of the TMCH, icludig the treatmet of desig marks, questios cocerig the requiremet to provide proof of use of the trademark, ad the test of a idetical match betwee the trademark ad a register-able domai ame. These are summarized i Sectio below Surise Periods The verified data i the TMCH is used to support Surise services, which allow trademark holders a early opportuity to register domai ames correspodig to their marks before domai ames are made geerally available to the public. The RPM Staff Paper explais that New gtld registries are required to offer a Surise period of at least 30 days. This ca occur i lie with oe of two optios: (i) I the case of a Start-Date Surise, the Registry Operator must provide the service for a miimum of thirty (30) caledar days prior to Geeral Registratio ad must provide thirty (30) caledar days otice prior to the start of the Surise period. (ii) I the case of a Ed-Date Surise, the Registry has o advace otice requiremet; however, the Registry Operator must provide the service for a miimum of sixty (60) caledar days prior to Geeral Registratio, ad must ot use a time-based allocatio method (e.g., first come, first served). The majority of registries who have lauched to date have offered a Ed-Date Surise. 37 New gtld registry operators are also obliged to maitai a Surise Dispute 34 See geerally the RPM Staff Paper, Sectio 3. For the actual TMCH guidelies see df. 35 RPM Staff Paper, p RPM Staff Paper, p RPM Staff Paper, p.54. Page 13 of 41

14 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Resolutio Policy, which allows for challeges to Surise registratios related to the registry operator s allocatio ad registratio policies, icludig o the grouds that the domai ame that was registered does ot match the trademark record o which the Surise-eligible rights holder based its Surise registratio. Commuity feedback provided o the Surise period i respose to the iitial RPM Staff Paper idicated that some commuity members would welcome clarity o issues such as the treatmet of premium ames ad the reservatio ad release of reserved ames by a registry operator. These questios ad suggestios are summarized i Sectio below Trademark Claims Service The Trademark Claims period follows the Surise period ad rus for at least the first iety (90) days of geeral registratio i which domai ames are made available to all registrats who are able to register domai ames withi the particular gtld. Durig the Trademark Claims period for a gtld, ayoe attemptig to register a domai ame matchig a mark that is recorded i the TMCH will receive a otificatio displayig the relevat mark iformatio. The Claims Notice is iteded to provide clear otice to the prospective domai ame registrat of the scope of the Trademark Holder s rights. 38 Should the otified party evertheless proceed to register that domai ame, the relevat trademark holder with a matchig record i the TMCH is the otified of the registratio. Extesive commuity feedback was provided o the Trademark Claims service i respose to the iitial RPM Staff Paper. Some of the substative topics addressed by commeters iclude the premise of a idetical match to trigger a otice, the limited applicability of the service to Abused Domai Name Labels, ad the possibility of extedig the period of the service. These commets are summarized i Sectio below Post-Delegatio Dispute Resolutio Procedures (PDDRPs) The Post-Delegatio Dispute Resolutio Procedures (PDDRPs), ulike the UDRP ad URS, are dispute resolutio processes that address a ew gtld registry operator s coduct rather tha alleged bad faith registratio of a secod level domai ame by a registrat. Of the curret three PDDRPs, oly the Trademark PDDRP is iteded to address trademark-related issues i the registry; the Registratio Restrictio DRP (RRDRP) ad the Public Iterest Commitmets DRP (PIC-DRP) were ot specifically desiged as RPMs for the same purpose, although they ca serve this fuctio i certai limited circumstaces 39. As of the date of publicatio of the iitial RPM Staff Paper, o valid complaits had bee filed uder ay of these PDDRPs ad as such, most of the commuity felt uable to provide ay 38 RPM Staff Paper, p RPM Staff Paper, p Page 14 of 41

15 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 useful feedback although some suggested that a review would be appropriate whe more data becomes available. I cosequece, ulike the other RPMs aalyzed i this Prelimiary Issue Report, o data or specific prior commuity iput is available for cosideratio i determiig whether or ot a PDP o all RPMs should be iitiated at this time Relevat Selected ICANN Documetatio ad Reports Protectig the Rights of Others Workig Group: Fial Report, Jue 2007 Implemetatio Recommedatios Team: Fial Report, May 2009 GNSO Special Trademark Issues Review Team: Report ad Recommedatios, December 2009 The Curret State of the Uiform Domai Name Dispute Resolutio Policy: Fial Issue Report, October 2011 Staff Paper o Rights Protectio Mechaisms i the New gtld Program: Revised Report, September 2015 Metrics compiled o the ew RPMs collected for the Competitio, Cosumer Trust ad Cosumer Choice Review: %20protectio%20mechaisms Nielse Global Cosumer Survey, Phase Oe: I additio, a variety of exteral sources were cosulted for further backgroud. These iclude the 2011 WIPO 2.0 Overview of WIPO Pael Views o Selected UDRP Questios 40, a umber of academic papers ad reports, ad the public commets refereced i the UDRP Report ad the RPM Staff Paper. 3.2 Discussio of Potetial Issues to be cosidered i a PDP to Review All the Existig RPMs i All gtlds Possible Outcomes ad Basic Objectives of a PDP 40 See Page 15 of 41

16 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 A potetial Rights Protectio Mechaisms Policy Developmet Process (RPM PDP) would, at a miimum, review the existig RPMs (icludig the UDRP) ad build o the commuity s collective experieces of their applicatio, effectiveess ad other relevat matters. It is importat to ote that the scope, rules ad procedures uderlyig the existig RPMs will remai fully applicable uless a GNSO PDP were to propose amedmets to oe, some or all of the existig policies (ad correspodig rules), or recommeds the creatio of replacemet mechaisms. The outcomes of a potetial RPM PDP Workig Group may iclude but are ot limited to: Developig ew or additioal RPMs (which could also iclude recommedig the developmet of ew or additioal procedural requiremets 41 ); Clarifyig, amedig or overridig existig RPMs (which could iclude ot oly situatios where particular chages are recommeded to a RPM but possibly also scearios where the PDP does ot result i the recommedatio of substative chages to a RPM but rather makig certai eeded clarificatios (e.g. i the applicable laguage of a RPM)); Recommedig the supplemetig of existig, or the developmet of ew, procedural requiremets for ay existig RPMs (which may more appropriately be performed by a Implemetatio Review Team coveed for the purpose, followig adoptio of the PDP recommedatios); or Recommedig either substative or procedural chages to ay existig RPMs, or the creatio of ew RPMs All RPMs to become Cosesus Policy applicable to all gtlds. A review of the prior work doe by ICANN that is clearly relevat to cosiderig ay potetial review of the RPMs at this time (i.e. the UDRP Report ad the RPM Staff Paper) would seem to demostrate that there are o simple problems for which there is a clear ad immediate remedy. As such, oe basic objective of ay RPM PDP that may be iitiated as a result of this roud of commuity cosultatio would be to build o the prior work that has already bee doe i order to coduct a more detailed review that focuses o the substative policy ratioales ad cosequet issues raised for ad by each RPM, with possible further aalysis of the uderlyig procedural rules as ecessary to fulfill that objective. Such a detailed review would ideally be coducted at a very early stage of a PDP, to better iform ad to clarify the scope of the aalysis to follow, as to whether or ot all the RPMs collectively ca be said to 41 It is evisaged that the actual creatio of specific rules implemetig ay policy recommedatios made by the PDP Workig Group will be the role of a Implemetatio Review Team, coveed to work with ICANN operatioal staff. Page 16 of 41

17 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 achieve the itetio of providig sufficiet protectio to trademark holders i both existig ad ew gtlds, or if further chages may be required The Fudametal Questios to be Aalyzed i a PDP All the RPMs discussed i this Issue Report were desiged to provide trademark holders with either prevetative or curative protectios agaist cybersquattig ad other abusive uses of their legally recogized trademarks. The geesis of the UDRP lies i the discussios aroud the US Govermet s Jauary 1998 Gree Paper, which oted (amog other topics) that [f]or cyberspace to fuctio as a effective commercial market, busiesses must have cofidece that their trademarks ca be protected. O the other had, maagemet of the Iteret must respod to the eeds of the Iteret commuity as a whole, ad ot trademark owers exclusively. This called for developmet of a balaced ad trasparet process, which icludes the participatio of trademark holders ad members of the Iteret commuity who are ot trademark holders, to develop recommedatios for a uiform approach to resolvig trademark/ domai ame disputes ivolvig cyberpiracy (as opposed to coflicts betwee trademark holders with legitimate competig rights) 43. Followig iitial work from the World Itellectual Property Orgaizatio (WIPO) ad policy developmet work i the Domai Names Supportig Orgaizatio (DNSO), the precursor to what is ow the GNSO, the ICANN Board approved the UDRP o 24 October I movig towards the lauch of the New gtld Program, the ICANN Board had ackowledged i 2009 that providig adequate protectio for trademark holders i a expaded DNS was oe of the overarchig issues i the New gtld Program 45. Followig the submissio of a Fial Report cotaiig its recommedatios by the Implemetatio Recommedatios Team (IRT) that had bee formed by the Itellectual Property Costituecy at the request of the Board, the GNSO s Special Trademarks Issues team was coveed for further cosideratio of the IRT recommedatios. The result of this work was the iclusio of the ew RPMs that are discussed i this report, i the fial versio of the Applicat Guidebook for the New gtld Program 46. The focus of the 2011 UDRP Report was exclusively o the UDRP ad whether or ot to review it, ad that aalysis was coducted prior to the lauch of the New gtld Program. More recetly, the scope of the recet RPM Staff Paper was o gatherig commuity feedback o the ew 42 This exercise would, however, ecessarily be postpoed to a later stage of work should the decisio be made to adopt the third optio outlied by staff i this report. 43 See the Statemet of Policy published i Vol. 63, No. 111 (10 Jue 1998) of the Federal Register: 44 The timelie for developmet ad evetual adoptio of the UDRP ca be viewed here: 45 See (March 2009 Board resolutio settig up the Implemetatio Recommedatios Team to develop appropriate mechaisms to achieve this durig implemetatio of the New gtld Program). 46 See RPM Staff Paper for further backgroud o the creatio of ad commuity cosultatios ivolved i the ew RPMs. Page 17 of 41

18 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 RPMs created for the New gtld Program rather tha highlightig which issues idetified by the commuity ought to be subject to a GNSO PDP. All this meas that, to date, a comprehesive review of all the RPMs has ot bee coducted. More specifically, there has ot bee a aalysis of whether or ot these RPMs are collectively fulfillig the objectives for their creatio as oted above, a questio that should be asked idepedetly of ay operatioal ad procedural issues surroudig the fuctioality of the RPMs Diverget commuity views o reviewig the UDRP The UDRP Report reveals two primary diverget views o the topic of whether the UDRP should be reviewed. This divergece of views has bee reflected cosistetly i commuity feedback o the UDRP Report as well as the 2015 Prelimiary Issue Report. Accordig to oe view, it is a basic best practice to review all log-stadig policies after implemetatio, whereas the other view was that a review should ot be coducted simply for the sake of form if the policy is geerally viewed as beig effective ad serves the commuity well. 48 While some commeters to the Prelimiary Issue Report thought that it is ot timely to review the UDRP, others wet further, suggestig that the UDRP should remai utouched as a policy framework give its effectiveess, cosistecy ad predictability. Oe cocer expressed was that the UDRP has [ ] evolved over the last 15 years, ad has bee sufficietly flexible to deal with ew issues i the DNS as they arise. As such, ad with over 50,000 cases, there is a sigificat body of precedet carefully developed by hudreds of expert domai ame paellists comig from a wide variety of jurisdictios. That very body of precedet is at risk if the uderlyig framework is sigificatly ameded or destabilized. 49 Other commets reflected similar views, otig that UDRP predictability has also supported a high settlemet rate betwee parties. More broadly, UDRP jurisprudece iforms domai ame registratio practices ad website use. 50 I the same vei it was metioed that if the UDRP were to be subject to review ad subsequet revisio, there is a risk that it will be weakeed to the poit that it o loger serves its iteded purpose, ad thus more trademark owers are likely to resort to court actio. 51 I the previous UDRP Report, some commeters had oted that while the UDRP has worked well, it is ot ecessarily perfect. They were therefore ameable to the idea of explorig possible improvemets to the procedural aspects of the policy, presumably through chages to the UDRP Rules or developmet of further Supplemetal Rules for providers that would alig with the UDRP Rules. The view that the UDRP or its Rules could be improved was eve stroger i some of the commuity resposes submitted to the 2015 Prelimiary Issue Report, for example: the UDRP eeds to be fixed ; 52 it ow seems timely to egage i a review of [the 47 May of these were poited out from the commuity s perspective i the public commets to the UDRP Report ad the iitial RPM Staff Paper. 48 UDRP Report, p Public Commet Review Tool, Prelimiary Issue Report, p Public Commet Review Tool, Prelimiary Issue Report, p Public Commet Review Tool, Prelimiary Issue Report, p Public Commet Review Tool, Prelimiary Issue Report p.24. Page 18 of 41

19 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 UDRP s] performace with a eye toward cosiderig possible improvemets ; 53 Ay procedure which has bee operatig for 15 years without ay review really ought to be subject to some assessmet of whether it has met the objectives for which it was created, ad whether it cotiues to do so. 54 I 2012, based o the public commets received to that year s Prelimiary Issue Report, staff had recommeded i the fial UDRP Report that a UDRP review be iitiated oly after the URS has bee i operatio for eightee (18) moths. This is reflected i the GNSO Coucil s subsequet request for a further Issue Report to be delivered o all the RPMs eightee (18) moths after the delegatio of the first gtld i the New gtld Program 55. The public commets received to the October 2015 Prelimiary Issue Report reveal a strog sese amogst some commuity members that the UDRP ought to be reviewed. I this regard, some other commeters cautioed that a review of such a complex ad log-stadig policy should ot be udertake based o the premise that the UDRP should be rewritte; rather, the purpose of a review should be to assess its purpose, its performace ad its effectiveess such that ay recommedatios for amedmets are based o the outcome of this aalysis, ad oly isofar as may be deemed ecessary. Cosideratio should also be give to the eed to differetiate betwee a review of the Policy itself, ad oe of the procedures ivolved i applyig the Policy (as oted earlier, this might ivolve amedmets to the prevailig UDRP Rules, or the creatio of ew Supplemetal Rules for providers). Should the GNSO Coucil iitiate a PDP o reviewig the RPMs icludig the UDRP, the PDP Workig Group should determie whether ad how to distiguish betwee these tasks as a matter of early priority i each phase of the PDP (if the two-proged approach recommeded i this report is adopted). Although the PDP Workig Group would ot be precluded from providig guidace o operatioal ad procedural improvemets to a RPM, the actual developmet of these rules ad processes would be more appropriately performed by a Implemetatio Review Team formed after the adoptio of the Workig Group s overall policy recommedatios The availability of data ad the timig of other relevat review exercises The 2011 UDRP Report cotais iformatio ad statistics provided by most of the UDRP service providers cocerig the umber of filigs, ature of ruligs ad other useful data cocerig the extet of use ad the outcomes of UDRP proceedigs 56. I additio, some providers maitai searchable databases of all UDRP pael decisios 57. Providers such as the WIPO 53 Public Commet Review Tool, Prelimiary Issue Report p Public Commet Review Tool, Prelimiary Issue Report p See UDRP Report, Aex See, e.g., WIPO Arbitratio ad Mediatio Ceter ( which also maitais statistics at Page 19 of 41

20 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Arbitratio ad Mediatio Ceter ad the Natioal Arbitratio Forum also regularly publish statistics cocerig their caseloads ad filigs 58. These sources as well as the logstadig ature of the UDRP meas that data cocerig the UDRP is readily available. Further, as show by the resposiveess of the various UDRP providers to the 2011 UDRP Report process ad other forums of egagemet with ICANN, the providers are geerally able ad willig to provide iformatio ad other assistace as may be ecessary for aalysis ad policy work. This was also reflected i the public commet forum o the 2015 Prelimiary Issue Report. The RPM Staff Paper icludes a umber of charts ad statistics illustratig the use of the various RPMs i the New gtld Program, datig to May 2015 (approximately 19 moths after the delegatio of the first gtld i the New gtld Program). I additio, the TMCH service provider maitais statistics o usage of the TMCH 59 while data o the URS ca be obtaied from the URS service providers. The ewess of the New gtld Program compared to the history of the UDRP meas that the data available to evaluate the ew RPMs does ot match that which is available for the UDRP. This disparity eed ot, however, prevet the GNSO from movig forward with a PDP. While postpoig a review of the RPMs would doubtless mea more statistics will be available i time, the data curretly available would seem to provide a sufficietly rich basis for commecig a review, with the possibility that the PDP Workig Group perform a check of its work at periodic itervals cocerig RPM usage i the ew gtlds (e.g. six moths followig its iceptio, the Workig Group ca request a update o the data curretly i the RPM Review Staff Paper from ICANN staff). No objectios to this approach were received i the public commet forum o the 2015 Prelimiary Issue Report. Aother importat cosideratio cocerig the timig of the lauch of a RPM PDP, as also expressed i the Prelimiary Issue Report, is the coordiatio of such a effort with other reviews of, or work that may be related to, the ew RPMs. Of most direct relevace is ICANN s commecemet 60 of a idepedet review of the TMCH, which had bee requested by the Govermetal Advisory Committee (GAC) i its April/May 2011 commets o the Applicat the Natioal Arbitratio Forum ( the Asia Domai Name Dispute Resolutio Cetre ( ad the Czech Arbitratio Court ( 58 See, e.g., WIPO s 2011 paper o The UDRP ad WIPO ( ad the recet release by the Natioal Arbitratio Forum ( For the TMCH: for the URS: ad 60 A Request for Proposals was issued by ICANN o 7 August 2015, closig o 28 August: see Page 20 of 41

21 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Guidebook for the New gtld Program 61. I its request, the GAC had listed several specific topics to be examied as part of the review, icludig: (1) a assessmet of whether o-idetical matches ca be icluded i the TMCH (e.g. domai ames that iclude a mark at the begiig or the ed of a applied for secod level domai, or key terms associated with the goods or services idetified by the mark, or typographical variatios idetified by the rights holder); ad (2) cosultatio with registry operators, registrats ad rights holders o the beefits (or otherwise) of extedig the Trademark Claims Service beyod the curret iety (90) day period. Notably, these recommedatios are similar to some of the commets received i respose to ICANN s recet solicitatio for iput through the iitial RPM Staff Paper. It is importat to ote that the objectives of the TMCH review iclude the idetificatio of issues that may be addressed i policy developmet work. The review is iteded to also help iform the discussio ad eable cosideratio of the rights protectio mechaisms available i the domai ame space. 62 Care should therefore be take i a GNSO RPM PDP to egage appropriately with the idepedet reviewer appoited to evaluate the TMCH ad to esure that the PDP Workig Group s timelie ad project milestoes take the results of the TMCH review fully ito accout where these raise policy-related issues. It is possible, for istace, that this idepedet review may reveal additioal policy-related topics that would fall appropriately withi the scope of the PDP. Flexibility i scope ad remit of ay PDP is therefore paramout to allow the GNSO commuity to adapt its work to ay other relevat developmets ad fidigs. Less directly associated with a potetial RPM review but oetheless of likely relevace is the Competitio, Cosumer Choice ad Cosumer Trust Review, which is part of the overall review of the New gtld Program madated by ICANN s Affirmatio of Commitmets with the Uited States govermet. A Implemetatio Advisory Group was formed i October 2013 to evaluate ad make recommedatios o the metrics for such a review that were iitially proposed by the GNSO ad the ALAC. Of the sixty-five (65) metrics ultimately recommeded by the IAG i September 2014 for the review, the relative icidece of combied UDRP ad URS complaits (possibly comparable to UDRP complaits i the legacy gtlds) was idetified as a first priority metric, with additioal recommedatios cocerig a survey to be coducted o registrat ad Iteret users experiece with regard to cybersquattig 63, ad iformatio to be collected o the quatity of itellectual property claims ad cost of domai ame policig relatig to ew gtlds 64. ICANN aticipates this review to commece i Jauary 2016, with the curret goal to complete the work by December As with the TMCH review, a PDP 61 The GAC had requested a post-lauch review of the TMCH oe year after the lauch of the 75 th ew gtld i the New gtld Program: see 62 See 63 See 64 The full report ad list of metrics ca be viewed here: 65 This is outlied i the Call for Voluteers that was published o 1 October: Page 21 of 41

22 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Workig Group reviewig all the RPMs should also moitor the work ad outcome of this review group, with a similar flexibility to amed or adapt its work accordigly. As with the matter of data availability, the lauch of these other parallel reviews should ot, i ad of themselves, militate agaist lauchig a PDP to review the RPMs at this time 66. However, ay Workig Group that is chartered to coduct the PDP will eed to, at a miimum, track ad cosider ay relevat output of these reviews as part of its scope ad timelie Potetial issues for review i a PDP A review of the commuity feedback provided to the UDRP Report ad iitial RPM Staff Paper shows that some members of the commuity believe there to be a umber of issues that are i eed either of policy developmet by the GNSO or that are ripe for review more geerally. While some of the issues idetified by the commuity clearly relate to operatioal problems ad possible procedural improvemets, some would seem to warrat commuity cosideratio of whether they would be appropriate issues for a GNSO Workig Group to aalyze i a PDP to review the RPMs. A o-exhaustive list of issues ad questios that had bee raised previously by the commuity i relatio to a possible RPM/UDRP review had bee icluded i the Prelimiary Issue Report precedig this report for commuity feedback as to their cotiued relevace ad appropriateess for policy review. Staff recommeds, however, that istead of madatig that the PDP Workig Group examie all these issues, the list as well as the commuity feedback collected o it would be more useful if it was provided to the PDP Workig Group as a startig poit ad a referece, as icludig such a list at the outset of a PDP might uecessarily restrict the scope of work of the PDP Workig Group. The list of issues has therefore bee moved to Aex B ad updated with commets ad other issues that were raised i the public commet forum to the Prelimiary Issue Report. I additio, the proposed Workig Group Charter (see Aex A) icludes a express referece to these issues but makes clear that the PDP Workig Group should use these as guidace of what its review should etail rather tha as a defiitive or exhaustive list Other factors relevat to the decisio whether to iitiate a PDP It is importat to ote that the list of issues ow cotaied i Aex B does ot represet the cosesus or majority views of the commuity. The two prior ICANN exercises that summarized 66 Note, however, the possibility of alterative approaches to a full PDP as outlied by staff elsewhere i this report. 67 Please ote that, as with the Prelimiary Issue Report, the items listed i Aex B exclude those items idetified as relatig to operatioal ad procedural matters as they would likely fall outside the scope of a GNSO policy review. Page 22 of 41

23 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 the curret state of the UDRP ad the ew RPMs ad that gathered commuity feedback o their workigs did ot differetiate betwee issues that were brought forward by large umbers of the commuity or by idividuals. This is ot to say that issues brought forward by a sigle perso would ot have the support of others or that it is less importat simply because it was highlighted by just oe or a few commeters. Give, however, the fact that all the RPMs are existig ad fuctioig mechaisms, ad that the UDRP has bee ackowledged to be largely successful i its objectives, the questio of whether a PDP should be lauched to resolve all the issues idetified by the commuity eeds to be very carefully cosidered, to avoid iadvertetly creatig ew problems (e.g. through a overly log or complicated review process, or creatig ucertaity about the future scope of certai policies ad associated rules). Should the GNSO Coucil decide to iitiate a PDP to address these questios, it will be ecessary for the resultig PDP Workig Group to first gai a thorough uderstadig of the curret fuctioality, applicability, ad compatibility with other processes of each RPM. Staff believes that this should occur at a very early stage of work i a RPM PDP. O the other had, the UDRP has ever bee substatively or comprehesively reviewed. I additio, sice the creatio of the ew RPMs there has ot bee a sigle, uiform review of all the RPMs or a cosideratio of their possible applicability to all gtlds. There is therefore o clear, cosistet framework for aalyzig all the RPMs that have bee developed to date that ca assist with the future review ad evolutio of such protectio mechaisms. Moreover, as oted previously, the UDRP is a ICANN Cosesus Policy that is bidig o all gtld registries ad registrars whereas the RPMs that were developed for the New gtld Program were the result of a process of commuity cosultatio through various iteratios of the Applicat Guidebook for the Program. They are bidig o all ew gtld registries through iclusio i the respective cotract each party eters ito with ICANN, ad through the Registrar Accreditatio Agreemet for ICANN-accredited registrars. Thus, though achievig the same effect (especially from a registrat s perspective), the meas through which these RPMs are bidig are ot cosistet. It may therefore be helpful as a matter of policy cosistecy for a PDP Workig Group to clarify whether or ot RPMs such as the URS beig a dispute resolutio process modeled o the UDRP should be a Cosesus Policy applicable to all gtlds. I additio, i explorig this questio, the Workig Group may eed to examie the potetial cosequeces of the URS havig the status of a Cosesus Policy, especially i relatio to the so-called legacy gtlds (i.e. those predatig the New gtld Program). The Workig Group may wish also to take ote of the fact that several registry operators of these legacy gtlds (e.g..cat,.pro,.travel) recetly agreed to adopt the URS i reewig their registry agreemets with ICANN. Thus, where the URS is a stadard cotractual obligatio for all registry operators of the New gtld registries, this is ot the case uiversally for the legacy gtlds. Furthermore, the PDP Workig Group will eed to take ito accout the fact that a differet but existig PDP Workig Group has already bee chartered to examie the questio of the URS as a Cosesus Policy i a arrower, more specific cotext. This is the IGO-INGO Access to Curative Rights Protectio Mechaisms PDP Workig Group, which is curretly examiig the eed for protectio for the acroyms of iteratioal govermetal orgaizatios (IGOs) at the secod level i all gtlds. I its charter, the IGO-INGO PDP Workig Group was asked to review the questio whether the URS should, like the UDRP, be a Cosesus Policy. Ay potetial overlap Page 23 of 41

24 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 that may emerge with the work of this PDP Workig Group, were a ew PDP to review all RPMs be iitiated, should therefore be take ito accout. I additio, the coveig of the CCT Review Team (CCTRT) is aother factor that might impact o the iitiatitio of a PDP at this time. It should be oted that this was poited out i the Prelimiary Issue Rpert ad the commuity feedback did ot idacte that this would be a reaso to stall the lauch of a PDP reviewig all RPMs i all gtlds at this momet. However, staff strogly ecourages close cooperatio ad commuicatio betwee ay future PDP Workig Group reviewig RPMs ad the CCTRT; this is also marked i the draft Charter (Aex B). Fially, as was oted i the UDRP Report i 2011, the impact of a ew PDP o staff ad commuity resources also eeds to be highlighted. While this factor should ot be dispositive of the issue of whether or ot a PDP is lauched, it should be a cosideratio for at least the PDP Workig Group i determiig its timelie ad prioritizig its work. Page 24 of 41

25 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary Procedural Matters ad Staff Recommedatio 4.1 Geeral Coucil Recommedatio Scope Cosideratios I determiig whether the issue is withi the scope of the ICANN policy process ad the scope of the GNSO, ICANN staff ad the Geeral Cousel s office have cosidered the followig factors: Whether the Issue is withi the Scope of ICANN s Missio Statemet ICANN s missio statemet states that ICANN should [coordiate] the operatio ad evolutio of the DNS root ame server system; [ad coordiate] policy developmet reasoability ad appropriately related to these techical fuctios. 68 The review of existig Cosesus Policies as well as the RPMs developed for the New gtld Program fall withi this coordiatio fuctio of ICANN s Whether the Issue is Broadly Applicable to Multiple Situatios or Orgaizatios All the RPMs directly affect Registries, Registrars, as well as other stakeholders such as registrats, rights holders, busiess ad other users. These RPMs are applicable across the DNS ad chages to ay of these policies would equally affect the parties listed above. Other ICANN Supportig Orgaizatios ad Advisory Committees will also likely be iterested i the issue ad the outcomes of a PDP, give the likely impact of these policies ad processes o Iteret users ad the geeral public Whether the Issue is Likely to Have Lastig Value of Applicability, albeit with the Need For Occasioal Updates The UDRP has bee i place sice 1999 ad the RPMs related to the New gtld Program have bee i operatio for approximately two years as of this writig. There has to date bee o comprehesive overarchig review of all the RPMs i the aggregate. A review of these would have lastig value. Ideed, the potetial eed to review their effectiveess i light of their policy 68 Page 25 of 41

26 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 objectives as well as the potetial for ecessary updates to some of these RPMs is the primary reaso for the GNSO Coucil s request for this Issue Report Whether the Issue Will Establish a Guide or Framework for Future Decisio-Makig The review of a log-stadig Cosesus Policy, the UDRP, would establish a importat framework for ay future reviews of existig ICANN Cosesus Policies. I additio, a policy review of the RPMs developed for the New gtld Program will guide future reviews of such processes, icludig i future rouds of gtld expasio. A PDP could also result i clear ad cosistet policy frameworks for all RPMs i all gtlds Whether the Issue Implicates or Affects ICANN Policy Ay review that results i proposed chages to the UDRP would affect the existig UDRP, which is a ICANN Cosesus Policy. 4.2 Staff Recommedatio ICANN staff cofirms that the issue of reviewig the UDRP as well as all New gtld-related RPMs is withi the remit of the GNSO s Policy Developmet Process as outlied i the ICANN Bylaws. Staff otes that a complete review of a logstadig Cosesus Policy such as the UDRP as well as a review of ew RPMs that were developed specifically for the New gtld Program is a uprecedeted edeavor for the GNSO. The UDRP is a fuctioig policy that has bee i place for a log time. While a review could be beeficial, prior ICANN work reportig o its operatios did ot highlight ay oe issue as geerally beig agreed upo as susceptible to a clear ad simple remedy. Similarly, the New gtld Program RPMs have bee i place for over two years ad do ot seem to have revealed obvious problems for which a straightforward remedy ca easily be desiged through quick cosesus. These observatios should be bore i mid i a PDP to review the RPMs ad are reflected i the scope of the draft Charter that ca be foud i Aex A. Staff otes further that ay review of the RPMs eed ot be based etirely o the list of issues cotaied i Aex B. Although the list is based o extesive commuity cosultatio, the issues as idetified have ot yet bee subjected to broad commuity discussio as to which of them represet actual problems with the policies or, more broadly, a example that the policy i questio is clearly fallig short of its objectives. Staff also cautios agaist a pick ad mix approach to these issues for iclusio i the charter for a possible PDP, ad recommeds istead that these serve as guidelies i the sese of a startig poit or possible framework for the work to be doe. The Workig Group could first assess the various RPMs for effectiveess ad the decide which of the issues raised should be addressed i respect of each such RPM. This may ultimately mea that all the issues cotaied i Aex B are addressed with the possibility that more issues are also aalyzed as a result of the cosesus decisio of the PDP Workig Group. Staff believes that permittig the Workig Group this discretio would ehace Page 26 of 41

27 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 the effectiveess of a PDP as it would allow for a iitial assessmet of each RPM prior to determiig which specific commuity-based cocers should be prioritized, how they might be addressed, appropriate remedies sought ad, if ecessary, additioal mechaisms explored. I assessig the workigs of each RPM, additioal cosultatio with with all of ICANN s Supportig Orgaisatios ad Advisory Committees (as madated by the GNSO s PDP Maual) as well as experieced dispute resolutio providers should be oe of the first tasks of ay PDP WG Two-Phased Policy Developmet Process I the Prelimiary Issue Report, staff had preseted three possible optios to the commuity for feedback o a preferred course of actio. The feedback received was mixed but there was stroger support for optio three 69 tha for either of the other two. 70 Staff therefore recommeds that a policy review of all the RPMs be coducted i two phases, with the iitial phase beig a review oly of the RPMs developed for the New gtld Program ad the secod, subsequet phase of work a review of the UDRP. A summary overview of this approach ca be foud i Aex C. Staff believes that this two-proged approach will allow for better aligmet of the timig of the work o reviewig the ew RPMs with the operatioal reviews of the New gtld Program (icludig the CCT Review) ad the ew PDP o New gtld Subsequet Procedures. Staff otes that the PDP (possibly i the secod phase) should also cosider whether ay of the ew ad by the reviewed RPMs should be cosidered Cosesus Policies like the UDRP. As is clear from the proposed draft Charter below, Staff recommeds that, prior to commecig the secod phase of the PDP, the Workig Group should provide a report to the GNSO Coucil to explai their achievemets ad to request ay updates to the Charter, to take ito accout ay ew ad uforesee issues or challeges that may have arise durig the first phase of the PDP. This report should also be published for public commet prior to commecemet of Phase Two of the PDP Recommeded Steps i a PDP Should the GNSO Coucil agree with staff ad lauch a two-phased PDP to review all the RPMs i all gtlds, staff recommeds that the followig steps be followed by the PDP Workig Group: 69 The first optio would have meat a review of all RPMs i all gtlds i the same PDP at the same time; the secod optio would have icluded a madatory requiremet i the PDP Charter to review scope ad work pla oce the results of the Cosumer Choice ad Trust Review are published; the third optio would be a two-phased PDP that is preseted as staff recommedatio i this fial Issue Report. 70 Oe cotributor suggested a alterative fourth optio (a reverse of optio 3) but there was o support for such a approach from ay other commuity members. Page 27 of 41

28 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 As oe of its first steps, the PDP Workig Group chartered to perform this task should prioritize the eed to uderstad fully the scope ad applicability of each RPM, ad how each of the RPMs iteract with ad supplemet oe aother, i order to gai a more cohesive view of how the RPMs work collectively. I a two-proged PDP, the Workig Group should take care to esure that its work o the UDRP durig the first phase is limited to uderstadig the UDRP s iterplay ad complemetarity with the ew RPMs, rather tha egagig i a i-depth review of the UDRP (which is reserved for the secod phase of the PDP). Secodly, the PDP Workig Group should review the suggestios that have already bee brought forward by the commuity regardig possible modificatios to the ew RPMs (durig the first PDP phase) ad the UDRP 71 (durig the secod PDP phase), i each case at a early stage i its work, i order to evaluate which are more suited to policy review ad developmet work, ad which relate to procedural ad implemetatio improvemets. Staff aticipates that it is at this stage of the work that the PDP Workig Group will also cosider the relevace of, ad eed to address, the list of issues (as they pertai to each RPM uder cosideratio) i Aex B. Thirdly, the PDP Workig Group should coordiate with, ad track the work of, other parallel or ogoig reviews of specific RPMs ad relevat projects that may provide useful data or iformatio to the Workig Group (e.g. the ogoig GNSO IGO-INGO Access to Curative Rights Protectios Mechaisms PDP Workig Group, the TMCH idepedet review, the CCT Review ad the New gtld Subsequet Procedures PDP Workig Group). I this regard, the PDP Workig Group should appoit a commuity liaiso to the New gtld Subsequet Procedures PDP Workig Group, who should ideally be a member of both PDP Workig Groups. Fourthly, upo the completio of Phase Oe of its work, the PDP Workig Group should prepare a First Iitial Report that also serves as a status report for the GNSO Coucil ad is published for public commet. At a miimum, the report should flag ay issues relevat to Phase Two that the PDP Workig Group recommeds for cosideratio durig a review of the UDRP, ay prelimiary recommedatios the Group iteds to make, ad ay issues or recommedatios that the Group believes should be cosidered by the PDP Workig Group o New gtld Subsequet Procedures. Fially, i preparig its timelie ad project milestoes (which would iclude separatig out the tasks appropriate to the two stages of a PDP if the two-proged approach is adopted), the PDP Workig Group should take ito accout the availability of ad demads o commuity ad staff resources, so as to facilitate timely ad effective outcomes of various stages of its work. 71 These are summarized i Aex 2 of the UDRP Report. Page 28 of 41

29 Issue Report to Review all RPMs i all gtlds Date:11 Jauary Next Steps Staff will forward this Fial Issue Report to the GNSO Coucil for its cosideratio ad actio. If the Coucil decides to lauch a PDP, staff will put out a call for voluteers to facilitate a timely lauch of the PDP Workig Group. Page 29 of 41

30 Issue Report to Review all RPMs i all gtlds Date:11 Jauary 2016 Aex A Workig Group Charter Workig Group (WG) Charter WG Name: TBD Sectio I: Workig Group Idetificatio Charterig Orgaizatio(s): Charter Approval Date: Name of WG Chair: Name(s) of Appoited Liaiso(s): WG Workspace URL: WG Mailig List: GNSO Coucil Resolutio: Importat Documet Liks: GNSO Coucil TBD TBD TBD TBD TBD Title: TBD Ref # & Lik: TBD GNSO Workig Group Guidelies GNSO PDP Maual The Curret State of the Uiform Domai Name Dispute Resolutio Policy: Fial Issue Report Staff Paper o Rights Protectio Mechaisms i the New gtld Program: Revised Report, September 2015 Metrics compiled o the ew RPMs collected for the Competitio, Cosumer Trust ad Cosumer Choice Review: hts%20protectio%20mechaisms Sectio II: Missio, Purpose, ad Deliverables Missio & Scope: Backgroud The questio of who legally has rights to, or is the legitimate holder of, a domai ame ca be ope to dispute. I relatio to domai ame disputes cocerig the registratio ad use of Page 30 of 41

31 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 legally protected trademarks, the Uiform Dispute Resolutio Policy (UDRP) is the logest stadig alterative dispute resolutio procedure. As a result of the New gtld Program, several ew rights protectio mechaisms (RPMs) were developed to mitigate potetial risks ad costs to trademark rights holders that could arise i the expasio of the gtld amespace: the Uiform Rapid Suspesio System (URS); the Trademark Clearighouse (TMCH) ad the associated availability through the TMCH of Surise periods ad the Trademark Claims otificatio service; ad the Post-Delegatio Dispute Resolutio Procedures (PDDRPs). Prior to the lauch of the New gtld Program, o 3 October 2011 ICANN staff had published a Fial Issue Report o the curret state of the UDRP. The recommeded course of actio i that UDRP Report was ot to iitiate a PDP at the time, but to hold off lauchig ay such PDP util after the ew URS had bee i operatio for at least eightee (18) moths. I additio, the September 2015 revised RPM Staff Paper had explicitly oted that some of the cocers idetified by the commuity for cosideratio as part of a review of the RPMs might be appropriate topics for policy developmet work. The UDRP has ot bee subject to comprehesive review. There has also ot bee a full review of all the RPMs developed to date by ICANN, to cosider whether or ot they are collectively achievig the objectives for which they were created. Missio ad Scope This PDP Workig Group is beig chartered to coduct a review of all RPMs i all gtlds i two phases: Phase Oe will focus o a review of all the RPMs that were developed for the New gtld Program, ad Phase Two will focus o a review of the UDRP. Nevertheless, by the completio of its work, the Workig Group will be expected to have also cosidered the overarchig issue as to whether or ot all the RPMs collectively fulfill the purposes for which they were created, or whether additioal policy recommedatios are eeded, icludig to clarify ad uify the policy goals. At a miimum, i each Phase of this PDP, the Workig Group is expected to first assess the effectiveess of the relevat RPM(s), for which the Workig Group should seek the iput of experieced olie dispute resolutio providers ad other subject matter experts, as may be appropriate. The Workig Group should also cosider the iterplay betwee ad complemetary roles of each RPM i seekig to more fully uderstad their overall fuctioig ad effectiveess. Followig its prelimiary assessmet of the effectiveess of the RPM(s), the Workig Group should cosider the suggestios that have bee made to date by the commuity regardig improvemets or modificatios to the RPM(s) i questio. The list of issues idetified for each of the RPMs i the Fial Issue Report for this PDP ad icluded i that report as Aex B provide a framework ad startig poit for the PDP Workig Group at this stage i its work, with further modificatios, additios ad deletios to be determied by cosesus of the Workig Group. I the course of its work, the Workig Group should moitor the progress of ad, where appropriate, coordiate with, other ICANN groups that are workig o topics that may overlap with or otherwise provide useful iput to this PDP. Especially, this PDP Workig Group shall maitai a close workig relatioship with the Comtetiio, Cosumer Trust ad Cosumer Choice Review Team (CTTRT) ad the PDP Workig Group o New gtlds Subsequet Rouds. To Page 31 of 41

32 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 facilitate iteractio betwee the two GNSO PDPs, a GNSO commuity liaiso, who is a member ad/or observer of both PDP WGs, shall be appoited by both Workig Groups as soo as both Groups have take up their work. I additio, the RPM PDP Workig Group should also take ito cosideratio the work/outcome of the TMCH Idepedet Review, the CCT Review, ad ay other relevat GNSO policy developmet projects. I additio to ay flexibility provided by the GNSO Operatig Procedures, Workig Group Guidelies ad the PDP Maual, the Workig Group should, at the coclusio of Phase Oe of its work, assess the eed for modificatio to this Charter ad, if appropriate, submit a request to the GNSO Coucil accordigly for the subsequet phases of its work. I additio, the GNSO Coucil, as the maager of the PDP process should be kept iformed at all times about coordiatio efforts with the CCT ad the PDP o New gtld Subsequet Rouds. It is thus the Coucil who, i case of coflict betwee these groups, shall take appropriate actio to alig work processes if ad whe ecessary. Objectives & Goals: I additio to a assessmet of the effectiveess of each RPM, the PDP Workig Group is expected to cosider, at the appropriate stage of its work, the overarchig issue as to whether or ot all the RPMs collectively fulfill the purposes for which they were created, or whether additioal policy recommedatios are eeded, icludig to clarify ad uify the policy goals. If such additioal policy recommedatios are eeded, the Workig Group is expected to develop recommedatios to address the specific issues idetified. The Workig Group is also directed to bear i mid that a fudametal uderlyig itetio of coductig a review of all RPMs i all gtlds is to create a framework for cosistet ad uiform reviews of these mechaisms i the future. Deliverables & Timeframes: I additio to the PDP deliverables prescribed i the ICANN Bylaws ad the PDP Maual, the Workig Group shall provide a first Iitial Report to the GNSO Coucil at the coclusio of Phase Oe of the PDP. The Report shall be put out for public commet ad also iform the GNSO Coucil about the progress of the Workig Group. At a miimum, the Report shall outlie the Workig Group s progress ad ay prelimiary recommedatios it may have developed with regard to the ew gtld RPMs. The first Iitial Report shall also highlight ay relevat fidigs, iformatio or issues that may have emerged durig Phase Oe ad ay issues or recommedatios that the Group believes should be cosidered by the PDP Workig Group o New gtld Subsequet Procedures, ad/or that the Workig Group cosiders relevat to its work i Phase Two. Phase Two of the PDP Workig Group shall focus primarily o the review of the UDRP. However, durig this Phase the WG is also expected to review its first Iitial Report, takig ito accout public commets received, ad/or feedback submitted from the New gtld Subsequet Rouds PDP or other ogoig efforts. Before cocludig its work the Workig Group shall take ito accout ay relevat developmets from the New gtld Subsequet Rouds PDP WG ad/or other relevat ICANN review or policy developmet work. The Workig Group s secod Iitial Report shall be completed ad published for public commet, as per the PDP Maual. The Page 32 of 41

33 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Workig Group shall the review all commets, complete its Fial Report ad submit it, as per the PDP Maual, to the GNSO Coucil for its cosideratio ad further actio. Sectio III: Formatio, Staffig, ad Orgaizatio Membership Criteria: TBD Group Formatio, Depedecies, & Dissolutio: TBD Workig Group Roles, Fuctios, & Duties: TBD Statemets of Iterest (SOI) Guidelies: If a WG is formed, each member of its will be required to submit a SOI i accordace with Sectio 5 of the GNSO Operatig Procedures. Sectio IV: Rules of Egagemet Decisio-Makig Methodologies: The PDP Workig Group will be expected to adhere to the rules i the GNSO PDP Maual ad Workig Group Guidelies. Status Reportig: At a miimum, the Workig Group should provide periodic updates at appropriate itervals to the GNSO Coucil, icludig a first Iitial Report at the coclusio of Phase Oe of its work, ad a secod Iitial Report upo the coclusio of Phase Two (as described above). Problem/Issue Escalatio & Resolutio Processes: These are expected to be resolved i accordace with the procedures i the GNSO s Workig Group Guidelies. Closure & Workig Group Self-Assessmet: If a Workig Group (WG) is formed it will close upo the delivery of a Fial Report, uless assiged additioal tasks or follow-up by the GNSO Coucil. A self-assessmet of its work will be carried out followig the coclusio of the WG s work. Sectio V: Charter Documet History Versio Date Descriptio Staff Cotact: Lars Hoffma, Mary Wog Policy-Staff@ica.org Traslatios: If traslatios will be provided please idicate the laguages below: Page 33 of 41

34 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Page 34 of 41

35 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Aex B List of potetial issues for review 72 The issues that are listed here have largely bee derived from the public commets provided to the UDRP Report, iitial RPM Staff Paper, ad the Prelimiary Issue Report. They are beig listed here as issues idetified by the commuity that may possibly have some policy impact or ecessitate further policy work, ad should ot be read as idicatig ay particular level of commuity support for iclusio i a PDP. These issues are iteded to iform the work of ay PDP Workig Group that is to be formed, ad serve as guidelies ad a framework for its work, which is expected to iclude cosideratio of more geeral, overarchig issues such as: Whether all the RPMs have, i the aggregate, bee sufficiet to meet their objectives or whether ew or additioal mechaisms, or chages to existig RPMs, eed to be developed; ad Whether ay of the ew RPMs (such as the URS) should, like the UDRP, be Cosesus Policies applicable to all gtlds, ad the trasitioal issues that would have to be dealt with as a cosequece. Whether, ad if so to what extet, chages to oe RPM will eed to be offset by cocomitat chages to the others Potetial issues cocerig the UDRP Are the UDRP s curret appeal mechaisms sufficiet? Should there be a limit to the time period allowed (e.g. similar to a statute of limitatio) for brigig UDRP complaits? Are free speech ad the rights of o-commercial registrats adequately protected i the existig policy? Should there be a formal (madatory) mechaism of early mediatio? Are the curret time limits of the UDRP (for filig, respose, determiatios ad appeals) adequate? 72 These issues have bee derived from commuity feedback to the UDRP Report, the Staff Paper, ad the Prelimiary Issue Report the merit ad importace of each of these has ot bee aalysed by staff as this should be doe by the PDP Workig Group. Page 35 of 41

36 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Should there be rules for the appoitmet of UDRP paels, such as formalized rotatios? Uder what circumstaces (if ay) should/could UDRP proceedigs be aoymized? Should there be clearer policy guidace o a registrar s obligatios if a case is stayed or suspeded? Should the possibility of laches be recogized i UDRP proceedigs; if so, how ca this be expressly addressed? Policy, the this must be doe with extreme care, coverig the above listed issues but also others, such as: Should or be itroduced istead of ad i the bad faith requiremets? Should there be a itroductio of a loser-pays sceario? Should moetary damages be awarded? The UDRP (ulike court proceedigs) does ot allow this, but there are examples of cctld registries ow applyig moetary damages. Should the relevat time periods be reduced? Should filig fees be lower? Should ijuctive relief be available? Should there be a bad-faith presumptio for repeat/serial offeders? Should repeat/serial offeders be blacklisted from ew registratios? Should permaet suspesio be added as a additioal potetial remedy uder the UDRP? How should the Privacy ad Proxy services which are ow frequetly used by registrats to shield their idetity be more efficietly removed i the course of a UDRP proceedig? Should the UDRP be revised to cover challeges to trademark-ifrigig cotet eve i the absece of trademark ifrigemet i the domai ame? Should a failure to respod result i a automatic default victory for the complaiat? Should a failure to maitai a active credit card with the registrar i order to fulfil ay loser pays Page 36 of 41

37 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 obligatios result i a automatic default victory for the complaiat? Potetial issues cocerig the URS Should the ability for defaultig respodets i URS cases to file a reply for a exteded period (e.g. up to oe year) after the default otice, or eve after a default determiatio is issued (i which case the complait could be reviewed aew) be chaged? Is the URS clear ad covicig stadard of proof appropriate? 73 Is there a eed to develop express provisios to deal with repeat offeders as well as a defiitio of what qualifies as repeat offeces? Should the URS allow for additioal remedies such as a perpetual block or other remedy, e.g. trasfer or a right of first refusal to register the domai ame i questio? Is the curret legth of suspesio (to the balace of the registratio period) 74 sufficiet? Is the cost allocatio model for the URS appropriate ad justifiable? Should there be a loser pays model? If so, how ca that be eforced if the respodet does ot respod? Should the Respose Fee applicable to complaiats listig 15 or more disputed domai ames by the same registrat be elimiated? Potetial issues cocerig Trademark Claims Should the Trademark Claims period be exteded beyod iety (90) days? Should the Trademark Claims period cotiue to apply to all ew gtlds? 73 See Sectio 8.2 of the URS Procedure. 74 See Sectio 14 of the URS Rules. 75 See Sectio 2 of the URS Procedure. Page 37 of 41

38 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Should the Abused Domai Name Label service be cotiued? Does a Trademark Claims period create a potetial chillig effect o geuie registratios, ad, if so, how should this be addressed? Potetial issues for review cocerig the Surise Period Should the availability of Surise registratios oly for idetical matches (e.g. without extra geeric text) be reviewed? Is the otio of premium ames relevat to a review of RPMs, ad, if so, should it be defied across all gtlds? Followig from Questio 2, should there be a mechaism to challege whether a domai is a premium ame? Should there be a specific policy about the reservatio ad release of reserved ames (e.g. modificatio of Sectio of Specificatio 1 of the curret Registry Agreemet)? Should there be a public, cetralized list of all reserved trademarks for ay give Surise period? Should holders of Trademark Clearig House-verified trademarks be give first refusal oce a reserved ame is released? Should Surise Periods cotiue to be madatory? If so, should the curret requiremets apply or should they be more uiform, such as a 60-day ed-date period? Whether ad how to develop a mechaism by which trademark owers ca challege Surise pricig practices that flout the purpose of Surise. whether more ca be doe to improve trasparecy ad commuicatio about various Surise procedures Potetial issues cocerig the Trademark Clearig House (TMCH) Should there be a additioal or a differet recourse mechaism to challege rejected trademarks? Should further guidace o the TMCH verificatio guidelies for differet categories of marks be cosidered? Page 38 of 41

39 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Should the TMCH matchig rules be expaded, e.g. to iclude plurals, marks cotaied or mark+keyword, ad/or commo typos of a mark? Additioal Questios Do the RPMs work for registrats ad trademark holders i other scripts/laguages, ad should ay of them be further iteratioalized (such as i terms of service providers, laguages served)? Do the RPMs adequately address issues of registrat protectio (such as freedom of expressio ad fair use? Have there bee abuses of the RPMs that ca be documeted ad how ca these be addressed? Is there a policy-based eed to address the goal of the Trademark PDDRP? Are the processes beig adopted by Providers of UDRP, URS, ad TMCH services fair ad reasoable? Are the Providers' procedures fair ad equitable for all stakeholders ad participats? Are the Providers cosultig with all stakeholders ad participats i the evaluatio, adoptio ad review of these ew procedures? Are the Providers traiig both the Complaiats ad the Respodets, ad their commuities ad represetatives, fairly ad equally i these ew procedures? Are Providers exceedig the scope of their authority i ay of the procedures they are adoptig? Is ICANN reachig out properly ad sufficietly to the multistakeholder commuity whe such procedures are beig evaluated by ICANN at the Providers request? Is this a ope ad trasparet process? What remedies exist, or should exist, to allow questios about ew policies by the Providers offerig UDRP, URS ad TMCH services, ad how ca they be expeditiously ad fairly created? What chages eed to be made to esure that procedures adopted by providers are cosistet with the ICANN policies ad are fair ad balaced? Page 39 of 41

40 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Aex C Overview for 2-phased PDP ad coordiatio with PDP o New gtld Subsequet Rouds Issue The GNSO has just lauched the Subsequet Rouds PDP ad may soo lauch the RPM PDP. RPMs ad their review is a issue that is directly relevat to the Subsequet Rouds PDP. However, it would ot be advisable for both PDP workig groups to cosider the issue as problems could arise ragig from duplicative work ad overlappig discussios to cotradictory outcomes ad recommedatios. Proposed Approach Staff suggests that the followig steps be take to facilitate effective fuctioig ad outcomes of both PDPs: (1) Potetial RPM PDP should have a iitial focus o New gtld RPMs: A comprehesive review of all RPMs would iclude a review of the UDRP. The scope of a RPM PDP would thus be broader tha the remit of the Subsequet Rouds PDP. Staff believes that the eed to develop a cosistet, uiform framework for comprehesive RPM review meas that a review of the New gtld RPMs should be doe outside the Subsequet Rouds PDP. I order to alig the work (icludig timig) of the two PDPs while esurig that a full RPM review icludes both the New gtld RPMs ad the UDRP, staff is proposig that the RPM PDP be coducted i two phases, with the review of New gtld RPMs beig doe i Phase Oe. Review of the UDRP would the be doe i Phase Two, which will commece upo completio of Phase Oe. (2) Subsequet Rouds PDP to expressly exclude RPM review: Staff further proposes to expressly exclude the developmet of policy recommedatios o New gtld RPMs from the Charter ad scope of the Subsequet Rouds PDP. While this should ot prevet the Workig Group from spottig issues relatig to RPMs, the Charter would stipulate that ay such pertiet issues that arise i the Subsequet Rouds PDP must be referred to the RPM PDP Workig Group. (3) Commuity liaiso ad staff support: To esure timely commuicatio ad facilitate coordiatio betwee the two PDP Workig Groups, staff is also proposig that a special commuity liaiso ideally a member of both PDP WGs be appoited. This should be reflected i the respective Charters for both Workig Groups. I terms of esurig similar coordiatio ad commuicatio amog the support staff for both Workig Groups, staffig will be assiged to esure that subject-specific kowledge is shared amog the differet support teams. Page 40 of 41

41 Issue Report to Review all RPMs i all gtlds Date: 11 Jauary 2016 Flow-Chart of ew gtld RPM PDP RPM PDP First Phase Hard Stop Secod Phase Iitial Report Fial Report Iitiatio Determie Commuity Liaiso betwee RPM PDP ad Subsequet Rouds PDP. Review exisig RPMs oly, excludig the UDRP. Commuicate closely with Subsequet Rouds PDP ad discuss issues that may arise there. Prepare First Iitial Report - cotaiig oly repelimiary recommedatio s o RPMot UDRP. Ope public commet forum Iform GNSO Coucil. Review UDRP Update recommedatio s o RPMs, takig ito accout public commets ad parallel efforts such as CCT. Iform Subsequet Rouds PDP o progress. Prepare Secod Iitial Report cotaiiig recommedatio s o both UDRP ad RPMs. Ope public commet forum Iform GNSO Coucil. Draft Fial Report, takig ito accout public commmets ad feedback from Subsequet Rouds PDP ad parrel efforts. Submit Fial Report to GNSO Coucil for its approval Page 41 of 41