ICANN Staff Briefing on RPMs for New gTLDs Provides Few Answers, Raises More Questions

This morning in Prague ICANN senior staff provided a briefing to the GNSO Council on the state of play for the rights protection mechanisms (RPMs) required for new gTLDs. Most of those occupying the packed room appeared to find the information imparted to be incomplete, non-illuminating, and somewhat distressing.

First discussing Uniform rapid Suspension (URS), staff again recited the position that the desired $300-500 filing fee “may not be met”, something that has been known for about a year – and that additional work and study is needed to attain that pricing goal while retaining “safeguards”. Kurt Pritz’s declaration that “we have to work together to solve this issue” struck a discordant note, given that ICANN staff have deliberately excluded the community from any participation in URS implementation over the past year, and has only consulted with WIPO, the IP Constituency, and other select and undisclosed parties in reaching its conclusion that URS “reconfiguration” is required. The briefing also made clear that staff is not ready to even recommend a process for reopening and adjusting the URS, while conceding that the issues to be addressed clearly lie within the policy realm and are not simply matters of technical implementation. It was also unclear whether the process going forward will be open and transparent or delegated to a handpicked group of “experts” in the manner of the controversial, trademark interest-dominated IRT that originated the URS concept.

A few hours later, in a meeting between the Council and ICANN’s Board, Council members cited the manner in which the URS has been handled as evidence of a clear breakdown in the multi-stakeholder process – noting that plans to reshape the URS were buried in a proposed budget document, that staff never discussed the reconfiguration “Summits” concept with the GNSO before budgeting for it, and that only a few select parties have been consulted in the implementation process. Council members also informed the Board that the entire staff briefing on the status of new gTLD implementation had been wholly unsatisfactory.

A 90-minute session devoted exclusively to the URS is on the meeting schedule for midday Wednesday, and we expect sharp questioning to occur there. ICA has opposed the proposed FY 13 budgeting of $175,000 for two proposed URS reconfiguration “Summits” due to the lack of any data or analysis justifying the conclusion that the price target cannot be met, as well as the total lack of definition of what the Summit process will entail. ICA also filed a DIDP last month – with the documents requested supposed to be disclosed this week – asking for full disclosure of all the details of URS implementation and analysis that have taken place over the past year. We certainly hope that ICANN will comply with full disclosure and not stonewall, as it is clear that multiple parties are upset with the manner in which this matter has been handled and that we all deserve to see the facts underlying the staff recommendations. ICA will of course share whatever useful information we receive with the entire community.

While the implementation process for the Trademark Clearinghouse (TMC) has been more open and transparent and is much further down the road than the URS, the briefing also made clear that it has not been as inclusive as desirable and that significant technical details remain to be worked out. Council members decried the fact that registrars and registries have never had a conversation with the technical providers chosen by ICANN, that the proposed implementation seems far too complex, and that requests for meetings to resolve technical issues have gone unanswered. New gTLD applicants, who have already shelled out an initial $185,000 per string in application fees, seemed distressed to learn that ICANN expected them to pony up an additional $7 –10,000 per string to pay for the TCM providers, and questioned whether ICANN had taken the proper steps to assure competitive pricing.

Overall, both the URS and TCM remain incomplete and critically flawed works in progress, and the process going forward for finalizing and implementing them seems indistinct and a potential source of additional controversy and delay. ICA will continue to monitor these important RPMs and press for open and transparent processes that preserve the legitimate rights of registrants in new gTLDs.

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