[council] Revised Statement of work for working group on protecting the legal rights of others

["Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

Hello All,

I haven't seen a revised statement of work, and in the interests of
keeping this moving, I attach a fresh draft that I hoe reflects the
consensus reached on the last Council call.

Currently the group is due to complete its work by the Council meeting
in April 2007.  I feel this should probably be extended to May 2007
given delays in getting this started.   Also we may wish to review how
we can appoint members to a working group that would be valuable
contributors but may not be eligible to join an existing GNSO
constituency.

See below for plain text version.  I will separately send a marked up
version.

Regards,
Bruce Tonkin


Working Group on Mechanisms to protect legal rights of others


Background

There is a new gTLD committee of the GNSO that is developing policy
recommendations with respect to the introduction of new gTLDs.    In
addition to policy recommendations, the committee is also considering
guidelines that may assist the ICANN staff in preparing an application
process, and also creating a framework agreement for registry operators.


The current registrar accreditation agreement requires that Registered
Name Holders  represent that, to the best of the Registered Name
Holder's knowledge and belief, neither the registration of the
Registered Name, nor the manner in which it is directly or indirectly
used, infringes the legal rights of any third party.   ICANN also has a
Consensus Policy called the Uniform Dispute Resolution Policy (UDRP)
that is intended for resolving disputes between the registrant and any
third party over the registration and use of an Internet domain name.   

In past new gTLD rounds, applicants for new gTLDs have been required to
implement measures that discourage registration of domain names that
infringe intellectual property rights; reserve specific names to prevent
inappropriate name registrations; minimize abusive registrations; comply
with applicable trademark and anti-cybersquatting legislation; and
provide protections (other than exceptions that may be applicable during
the start-up period) for famous name and trademark owners.    There have
been a range of approaches used which vary in terms of both cost to
registrants and third parties affected by registration, and
effectiveness.

As part of the new gTLD committee's deliberations, there has been some
discussion about what additional protections beyond the current terms in
the registration agreement and existing dispute resolution mechanisms
should be in place to the protect the legal rights of others during the
domain name registration process, particularly during the initial start
up of a new gTLD where there is contention for what Registrants perceive
as the "best" names.


Purpose:  

The purpose of the working group is to:

(1) Document the additional protections implemented by existing gTLD
operators beyond the current terms in the registration agreement and
existing dispute resolution mechanisms to the protect the legal rights
of others during the domain name registration process, particularly
during the initial start up of a new gTLD where there is contention for
what Registrants perceive as the "best" names.    The documentation
should identify the problems that the protections were intended to
solve.    The working group should establish definitions of terms used
in this document to ensure a common understanding amongst members of the
working group.  These definitions would only be in the context of the
document, and without prejudice to the meaning of these terms in other
legal contexts.

(2) Determine whether to recommend to Council a best practices approach
to providing any additional protections beyond the current registration
agreement and UDRP policy  for the legal rights of others during the
domain name registration process, particularly during the initial start
up of a new gTLD where there is contention for what Registrants perceive
as the "best" names.   A best practices document could be incorporated
into the material for the application process for new gTLD applicants.
The GNSO could elect in future to use the policy development process
(PDP) to create a Consensus Policy in this area.





Suggested Outline of Working Group Work Plan

I.      Analyze Existing Rights Protection Mechanisms 

   A.   Identify relevant existing TLDs (not limited to gTLDs) 

   B.   Identify both issues that existing preventive mechanisms are
designed to solve and new issues that may have developed 

   C.   Describe existing rights protection mechanisms

      1.        Eligibility

      2.        Rights bases or requirements

      3.        Submission process and costs of submission

      4.        Review of applications

      5.        Challenge mechanism and cost of mechanism

  D.    Issues arising out of or related to the existing rights
protection mechanisms

      1.        Eligibility

      2.        Rights bases or requirements

      3.        Review of applications

      4.        Allocation 

  E.    Analyze Quantitative Effectiveness - relation between preventing
the dispute and resolving the dispute

      1.        Define quantitative effectiveness in light of the issues
identified in I.B.

      2.        Number of preventive registrations, number of preventive
registrations vs. overall number of registrations; proportion of
registrations that are purely defensive

      3.        Number of challenges overall and in relation to number
of registrations; challenger success rate

      4.        Evaluate quantitative success in light of the issues
identified in I.B.

F.      Analyze Qualitative Effectiveness

        1.      Define qualitative success and set forth criteria for
any evaluation in light of issues identified in I.B.

        2.      Nature of use of names registered during start up period
        
      3.        Whether rights protection mechanism process protects
rights in a cost-effective manner in light of issues identified in I.B.

      4.        Evaluate qualitative effectivessin light of issues
identified in I.B.

G.      Impact on registries and registrars

   1.   Resource allocation

    a)  Development of rights protection mechanism

    b)  Implementation of rights protection mechanism

  2.    Other considerations

H.      Impact on other affect parties


II.     Identify Commonalities and Variances among existing rights
protection mechanisms, including the evaluation by affected parties.

A.      Eligibility Commonalities and Variances

B.      Procedural Commonalities and Variances 

1.      Submission

2.      Review

3.      Challenge

C.      Level of Satisfaction

1.      Prior Rights Owners

2.      Registrars

3.      Registries

4.      Other Categories 


III.    Scalability of rights protection mechanisms

A.      Feasibility

Conclusions derived from I and II above -- effectiveness; impact on
registrars, registries, and other affected parties; concerns of IP owner
and holders of other rights

B.      Implementation Considerations

IV.     Identify and Evaluate Alternative Mechanisms

A.      Alternatives

B.      Evaluation

Suggested Working Group Membership 

The following list sets out initial ideas for experts that would provide
useful contributions.  The list is neither binding nor enumerative. 

*       Owners of globally famous brands from different regions.
*       INTA Internet Committee member 
*       Rights protection mechanism dispute panelist 
*       Non-profit educational or charitable organization representative
*       Registrars with experience in preventive rights protection
mechanisms
*       Registries with experience in preventive rights protection
mechanisms
*       Representative from EURid or PWC, EURid validation agent
*       Commercial financial institution representative (because of
concerns over consumer protection and concerns related to fishing and
identity theft)
*       IPC designee
*       NCUC designee
*       ISP designee
*       BC designee
*       WIPO representative (given WIPO's expertise in evaluating
existing rights protection mechanisms)


1. Voting: 

In general, the working group should operate using a rough consensus
approach.  Every effort should be made to arrive at positions that most
or all of the group members are willing to support.  "Straw poll voting"
should be used to determine whether there is rough consensus on
particular issues.  In order to ensure that each constituency does not
have to provide the same number of members, constituencies, regardless
of number of representatives, can hold 3 votes, and each individual
nominating committee councilor hold one vote. Liaisons are non voting. 

2. Membership 

The Working Group is open for membership to Councilors and to GNSO
Constituency members; advisory committees (e.g., ALAC, GAC) may appoint
non-voting liaisons to the working group. Members may be added by the
constituencies and the Advisory groups at any time during the work of
the WG. The ccNSO could be invited to have representatives participate
as observers because there may be implications for the treatment of the
two letter country codes, which are presently reserved at all levels.
The WG may invite external experts as speakers or advisors (in the role
of observer)  that may be able to constructively contribute to the
effort.

Every effort should be made to ensure that the working group include and
consider the varying points of view on key issues.  It is more important
that all varying points of view are examined and reflected than for
every constituency or group to have representation or equal numbers of
members.  If this goal is achieved and recommendations are developed
that have rough consensus of the group, then the full Council, with
balanced representation from all constituencies and NomCom appointees,
will then have opportunity to act.

Members should be selected who can commit sufficient time during the
next three-four months to facilitate achievement of the targeted
accomplishments describe in the next section (Working Timeline).  

The Council will appoint an initial or interim chair [or co-chairs] and
the Working Group should, at its initial meeting, elect or confirm the
chair and co-chair(s). 

3. Working Timeline  

The Working Group is asked to convene at the earliest possible time and
to achieve the following targets:
1.      Progress report at least one week prior to the start of the
Lisbon ICANN meetings (16 March 2007).
2.      Final report at least one week prior to the April  2007 GNSO
Council meeting.


Timeline: 

The working group should conclude its work in time to provide a report
for the GNSO Council meeting in April 2007