A key focus of the on-going ICANN Rights Protection Mechanisms (RPMs) Policy Development Process (PDP) at the recent ICANN Abu Dhabi meeting was the emphasis on data-driven policy development. The RPMs PDP working group is currently reviewing the measures which were implemented for the first round of new gTLDs to determine what, if any, changes it recommends for future releases of new gTLDs. In doing so, it is seeking to focus on matters for which there is evidence of a harm that requires remedy.
At the meeting there was a session of the sub-group working on a proposed data-gathering exercise intended to inform this task, for which the aim is to conduct surveys of various different parties within the domains ecosystem, including registries, registrars, trademark owners, and other registrants and potential registrants. This will be a substantial exercise, intended to elicit responses which will inform the consideration of questions such as:
- The impact of premium and reserved names on Sunrise uptake;
- Whether there should be greater standardisation of Sunrise periods;
- Whether certain types of registries, such as city and community gTLDs, need more tailored Sunrise rules; and
- Whether the Claims service is having a deterrent effect and/or whether it has unintended consequences of “chilling” registrations which would be legitimate.
We will be highlighting the exercise when it takes places and recommending that brand owners do participate.
Also on the subject of data-driven, evidence-based policy development, the working group had a dedicated session with members of the Competition, Consumer Trust and Consumer Choice (CCT) review team, specifically about their forthcoming recommendations relating to rights protections, which are due to be issued for public comment shortly. These include that:
- The Impact Study on the cost of new gTLDs to brand owners (commissioned earlier this year by INTA) should be conducted every 18-24 months;
- There should be a full review of the URS. This requirement might be met by the work already underway in the RPMs PDP; and
- There should be a cost-benefit analysis of the TMCH. It appears that this is intended also to extend to the Sunrise and Claims which run off the TMCH. Again, it is possible that this requirement might be met by the work already underway in the RPMs PDP.
Finally, two working group sessions at the Abu Dhabi meeting were devoted to the Uniform Rapid Suspension (URS) dispute procedure, which the working group will begin to review whilst awaiting the outcome of its data gathering exercise. This included an overview of what the URS is, to act as level-set for working group members who may not be so familiar with this RPM, followed by a session running through the current questions identified in the RPMs PDP Charter to gather initial feedback.
Why this matters
For those who are considering applying for a top level domain, whether a .Brand or an Open gTLD, this work reviewing the new gTLD RPMs has a potential impact on the timing for any new application phase opening. Since the RPMs working group’s timeline has slipped considerably, the ICANN Board may face calls for a future new gTLD application window to proceed under the same RPM provisions as in the first round, although there are also a number who believe that the review should be completed first. In addition, the recommendations to the Board from the CCT-RT regarding the URS and the cost-benefit analysis of the TMCH are both likely to be proposed as pre-requisites for a future gTLD round. Potential next round applicants will therefore have an interest in ensuring that these studies and the RPMs review generally proceed as quickly and efficiently as possible.
As a brand owner, the RPMs which will apply to any future new gTLD releases will also be of great importance. Given the evidence-based approach, those who believe that improvements are required to the RPMs, in order to safeguard rights owners and their underlying consumers, really need to share real-world examples and hard data with the working group. In the absence of evidence demonstrating a need, we are unlikely to see those improvements.
Various surveys and further studies are in the pipeline and it is extremely important that brand owners take the time to provide their input. Only 33 brand owners completed the first Impact Study. There were good reasons for this. It was long and time-consuming to complete, many companies viewed some of the information being requested as too confidential to disclose, and it was not possible to submit a partially-completed survey excluding such sensitive information. Nevertheless, with such a small sample size this study can only act as an indicator of trends and it has been heavily criticised by those who do not support the existence of the RPMs.