Rights Protection Mechanisms Policy Development Process Final Report

Why is the Board addressing the issue?

The 2012 New gTLD Program rights protection mechanisms (RPMs) are mechanisms that have now been in use for several years. Community feedback on the RPMs developed for the 2012 New gTLD Program indicated a need to review their application and scope, especially if there is to be further expansion of the gTLD space. As this PDP is the first time that the RPMs have been subject to a policy review by the ICANN community, there were no comprehensive studies or data collected that measured their effectiveness.

As such, on 15 March 2016, the GNSO Council chartered the PDP Working Group to conduct a review of all the RPMs in two phases. Phase 1, which recently concluded, focused on reviewing the effectiveness of all the RPMs and associated structures and procedures applicable to gTLDs that were launched under the 2012 New gTLD Program. Phase 2 will focus on reviewing the Uniform Domain-Name Dispute-Resolution Policy (UDRP), which has been an ICANN Consensus Policy since 1999.

In November 2020, the PDP Working Group completed its review of the RPMs that were developed for the 2012 New gTLD Program and submitted its Phase 1 Final Report to the GNSO Council for review and approval. The Phase 1 Final Report represents the culmination of over four years of work by the PDP Working Group.

On 21 January 2021, the GNSO Council voted to approve by a GNSO Supermajority all the 35 recommendations contained in the Phase 1 Final Report. On 19 March 2021, the GNSO Council transmitted its Bylaws-mandated Recommendations Report to the ICANN Board of Directors, recommending adoption of all the final recommendations by the ICANN Board.

As required by Article 3, Section 6.(a)(iii) of the ICANN Bylaws, the approved recommendations were posted for public comment to inform Board action on the final recommendations. Furthermore, under Section 11.3(i)(x) of the ICANN Bylaws, the GNSO Council's Supermajority support for these recommendations obligates the Board to adopt the recommendations unless, by a vote of more than two-thirds, the Board determines that the policy is not in the best interests of the ICANN community or ICANN.

What is the proposal being considered?

In 2016, the PDP Working Group was chartered to assess the effectiveness of the existing RPMs, including those established as safeguards in the New gTLD Program, and to study whether or not all the RPMs collectively fulfill the purposes for which they were created. The Board today considers the 35 Phase 1 final recommendations from the PDP Working Group.

The Final Report contains 35 recommendations, which were classified into three categories by the PDP Working Group: nine recommendations which recommend that the status quo (e.g., the current rules as applied to the gTLDs delegated under the 2012 New gTLD Program round) be maintained,15 recommendations for new policies or procedures to improve the RPMs launched under the 2012 New gTLD Program, such as to enable fulfillment of the objectives for their creation and enhance their effectiveness in the next new gTLD expansion round, as well as 10 recommendations to modify existing operational practices to improve the effectiveness of the RPMs. As the Working Group experienced difficulties in obtaining quantitative data concerning the effectiveness of the Phase 1 RPMs, it also put forward an Overarching Data Collection Final Recommendation aimed at addressing this data-related gap.

Among the 35 Phase 1 final recommendations, the PDP Working Group reached full consensus on 34 recommendations and consensus on one recommendation, which was the TMCH Final Recommendation #1. A Minority Statement was jointly filed by seven members of the PDP Working Group with regard to this recommendation, although the Minority Statement did not oppose the primary thrust of the recommendation but instead noted the submitters' concerns over the scope of "word marks" that can be accepted into the TMCH. The Minority Statement was included in the Phase 1 Final Report as "Annex D – Working Group Members' Minority Statement on TMCH Final Recommendation #1".

As required by Article 3, Section 6.(a)(iii) of the ICANN Bylaws, the recommendations were posted for public comment to inform Board action on the final recommendations. In considering the Final Report, the Board reviewed public comments on the Phase 1 Final Report and briefings by ICANN org on the feasibility and impact of implementation of all the recommendations, including considerations regarding the timing and resourcing needs in the context of the overall prioritization of work on implementation of other community-developed recommendations and other existing activities by the ICANN org and community.

In its review of all the recommendations contained in the Phase 1 Final Report, the Board noted that implementation of the recommendations could be divided into several categories. These implementation categories are:

1) Recommendations where no substantial resources are needed for implementation as they can be integrated into existing work efforts – a total number of 16 recommendations:

Implementation of 15 of the 16 recommendations in this category involves updating existing documentation and related materials concerning the relevant RPMs, such as the URS Rules, URS Procedure and URS High Level Technical Requirements for Registries and Registrar, as well as the RPM Requirements, TM-PDDRP, and the TMCH Database Framework Agreement (TMCH Final Recommendation 4, Trademark Claims Final Recommendations 2, 5, and 6, URS Final Recommendations 1, 2, 3, 4, 5, 6, 7, 11, 14, and 15, and one TM-PDDRP Final Recommendation).
With regard to modifying existing operational practices, one of the 16 recommendations in this category involves working with registries, registrars, and URS Providers to ensure that one another's contact details are up to date in order to ensure the efficacy of the URS process (URS Final Recommendation 12).
2) Recommendations to maintain the status quo – a total number of nine recommendations:

The recommendations in this category involve documenting and informing the community as to how the status quo (i.e. the current rules as applied to the gTLDs delegated under the 2012 New gTLD Program application round) will be maintained in the next new gTLD expansion (TMCH Final Recommendation 2, Sunrise Final Recommendations 2, 3, 4, 5, 6, and 7, and Trademark Claims Final Recommendations 3 and 4).
3) Recommendations requiring substantial time and resources to implement – a total number of six recommendations:

Implementation of four of the six recommendations in this category involves working with RPM-related service providers to develop educational materials to assist users of the RPMs (TMCH Final Recommendation 3 and URS Final Recommendations 9, 10, and 13).
Implementation of one recommendation in this category involves developing a new and separate complaints mechanism or mechanisms to ensure that URS providers, registries, and registrars operate in accordance with the URS Rules and fulfill their role and obligations in the URS process (URS Final Recommendation 8).
Implementation of one recommendation in this category involves working with RPM-related service providers and ICANN-accredited registrars to collect data concerning the TMCH (one (1) Overarching Data Collection Final Recommendation).
4) Recommendations affecting subsequent round(s) of new gTLDs – a total number of four (4) recommendations:

Implementation of these recommendations involves making specific changes to the Applicant Guidebook and/or the Base Registry Agreement for the next expansion round of new gTLDs (TMCH Final Recommendation 1, Sunrise Final Recommendations 1 and 8, and Trademark Claims Final Recommendation 1).
Annex A contains additional details on each recommendation and the scope of effort required for implementation.

Which stakeholders or others were consulted?

In accordance with the requirements of the GNSO PDP Manual, the Working Group solicited early input from ICANN's Supporting Organizations and Advisory Committees as well as the GNSO's Stakeholder Groups and Constituencies. The Working Group also sought input from registry operators, URS providers and practitioners, and other stakeholders, and conducted a data-gathering exercise to obtain specific data points for the Phase 1 RPMs.

As mandated by the GNSO's PDP Manual, the PDP Working Group published its Phase 1 Initial Report on 18 March 2020 for public comment, which closed on 4 May 2020. Following a careful review of all public comments received from 55 contributors as well as extensive discussions over a number of additional recommendations developed as a result of the public comment review, the Working Group finalized its recommendations and delivered its Phase 1 Final Report to the GNSO Council in November 2020. Several Working Group members submitted a Minority Statement pertaining to the TMCH Final Recommendation #1. The Minority Statement was included in the Phase 1 Final Report as Annex D.

As required by the ICANN Bylaws, a public comment proceeding for the final recommendations in the Phase 1 Final Report was conducted between 7 April 2021 and 21 May 2021, which allowed stakeholders to comment on the proposed recommendations prior to Board action. As further required by the Bylaws, on 7 April 2021 the ICANN Board notified the GAC of the GNSO Council's approval of the Phase 1 Final Report, to allow the GAC to provide timely advice on any public policy concerns that it may have with the recommendations.

What concerns or issues were raised by the community?

The community provided feedback through Public Comments on the Initial and Final Phase 1 Reports and correspondence. A few Working Group members also submitted a Minority Statement to the Phase 1 Final Report, which raised concerns regarding the continuing confidentiality of the TMCH database and the possibility that the scope of marks accepted by the TMCH is broader than the scope of rights conferred by trademark registration. The Phase 1 Working Group considered all Public Comments filed to its Initial Report in coming to consensus on its final recommendations. The Report of Public Comments on the Phase 1 Final Report summarizes the concerns raised by commenters for the Board's consideration.

What significant materials did the Board review?

The Board reviewed the following materials:

The 18 March 2020 Phase 1 Initial Report of the GNSO PDP on the review of all RPMs in All gTLDs.
The 24 November 2020 Phase 1 Final Report of the GNSO PDP on the review of all RPMs in All gTLDs.
The 10 February 2021 GNSO Council Recommendations Report regarding the adoption of the Phase 1 Final recommendations.
The 21 January 2021 GNSO Council resolution of the RPM PDP Phase 1 Final Reportrecommendations.
The 4 June 2021 Staff Report of Public Comment Proceeding on the Phase 1 final recommendations from the GNSO Review of all RPMs in all gTLDs PDP.
What factors did the Board find to be significant?

As noted in the GNSO Council Recommendations Report, the PDP Working Group's 15 recommendations for new policies or procedures, 10 recommendations to modify existing operational practice, and one recommendation for overarching data collection are expected to have operational, financial, and/or other impact on registries and registrars who have to implement new requirements and improvements to existing processes; RPM-related service providers, including the TMCH Validation Provider, TMCH Database Provider, URS Providers, and TM-PDDRP Provider; and ICANN org, which will have to, among other things, update its documentation and related materials concerning the TMCH and the Applicant Guidebook for future expansions of new gTLDs, and collaborate with the RPM-related service providers and Contracted Parties to implement the new policies and procedures.

In addition to the 35 Phase 1 final recommendations, the Phase 1 Final Report included a substantial amount of implementation guidance, which are intended to provide supplemental and/or clarifying information to assist with implementation of the recommendations. The Board understands from the GNSO Council Recommendations Report that substantial time and effort will be needed to translate the recommendations into policy language and operational requirements, as well as the complexity of implementing these recommendations with the involvement of various stakeholders.

The Board also understands that some of the PDP Working Group's Phase 1 recommendations will affect future expansion round(s) of new gTLDs. In particular, the PDP Working Group proposed specific changes to the Applicant Guidebook and/or the Base Registry Agreement. As such, the Board's adoption of these recommendations means that they will need to be factored into preparations for future expansion of the gTLD space, including coordination with the SubPro IRT should the Board decide to adopt the recent PDP recommendations from the GNSO's New gTLD SubPro PDP.

The ICANN org has preliminarily estimated that implementing the Phase 1 final recommendations could take a minimum of two years from Board adoption. However, a significant factor that is likely to impact the final implementation timeline is the Board's decision regarding the SubPro PDP recommendations, including implementation considerations based on the outcomes of the Operational Design Phase currently underway for SubPro.

Are there positive or negative community impacts?

Adopting the final recommendations will have a positive impact on ICANN in that it will contribute to ensuring that ICANN addresses policy questions and operational issues identified through experience with the RPMs developed for the 2012 New gTLD Program. Board adoption of the recommendations will facilitate a coherent and uniform mechanism for future reviews of all RPMs and allow for opportunities for continuous improvement of these policies and processes. However, community bandwidth and resources will be required to ensure that implementation of the recommendations are consistent with what the PDP Working Group intended, in addition to other ongoing work in the community.

Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?

Implementing the Phase 1 recommendations is expected to have operational, financial, and/or other impact on registries and registrars who will implement new requirements and improvements to existing processes; RPM-related service providers, including the TMCH Validation Provider, TMCH Database Provider, URS Providers, and TM-PDDRP Provider; and ICANN org, which will have to, among other things, update its documentation and related materials concerning the TMCH and the Applicant Guidebook for future expansions of new gTLDs, and collaborate with the RPM-related service providers and Contracted Parties to implement the new policies and procedures, update existing documentation and develop or enhance educational materials to assist users of the RPMs.

Are there any security, stability or resiliency issues relating to the DNS?

None at this time.

Is this decision in the public interest and within ICANN's mission?

This action is within ICANN's Mission and mandate and in the public interest as set forth in the ICANN Bylaws. The multistakeholder policy development process of bottom-up, consensus policies and guidelines helps advance the stable and secure operation of the Internet's unique identifier systems.

Is this either a defined policy process within ICANN's Supporting Organizations or ICANN's Organizational Administrative Function decision requiring public comment or not requiring public comment?

As required by the ICANN Bylaws and the GNSO's policy procedures, the recommendations were the subject of public comment as discussed above.