[gnso-igo-ingo] food for thought - options to be considered

[Thomas Rickert <rickert@xxxxxxxxxxx>]

All,
considering the exchange of thoughts we had on the items of the spreadsheets 
and the comments received in response to the request for input, I would like to 
share a few observations with you in preparation of the next call. 

The way I present these may be perceived drastic, but please understand my role 
as devil's advocate to stimulate a discussion. We need to reduce the number of 
arguments on the table and discuss options to move forward and I will make some 
suggestions we can discuss below.

It appears that many in the community ask for evidence that there is a problem 
that needs to be fixed. This was emphasized e.g. in the ALAC statement. We have 
discussed this topic on the basis of the NOTP spreadsheet. 

However, let me try to define where the lack of protection is located that 
those requesting protections are now seeking:

There are new RPMs, but these are deemed insufficient because

I. they cannot be used by some affected parties;
II. there are costs associated with RPMs; and
III. they are reactive and do not prevent third party registrations from taking 
place.
 

ad I
I have seen no opposition to making the RPMs available to all users of the DNS 
(as the RySG put it in their comment).
Thus, I guess chances would be good to get at least near to consensus on this 
one.

ad II
My impression is that most participants of the working group agreed that 
granting special protection requires a problem specific to the group of 
potential beneficiaries of the protections. We would not treat all users 
equally if we used an argument that also affect other users or user groups to 
grant specific protections. It appears that the issue of costs hits all those 
affected by third parties illegitimately using their designations. 

I may be wrong, but I have not seen broad support for the idea of granting 
special protections because of cost (may it be for the use of RPMs, defensive 
registrations or administrative costs).

ad III
In my view, this is the area our discussions will focus on in the coming weeks. 

I will ask during tomorrow's call whether you agree with this view.


Talking about item III we need to discuss the following questions in more depth:

1. What is the problem is we are trying to solve? What harm shall be prevented?
2. What would be the qualification criteria?
3. What would a protection mechanism look like?

ad 1
Particularly in the ALAC statement there are some criteria mentioned. These 
seem to include quite subjective factors, particularly when it comes to 
quantitative elements. 

Alan, you had offered to send some questions / factors to the list that can be 
used to answer the question of harm. Are you in a position to have those ready 
for the call tomorrow? That would be most helpful.

Apart from that, my impression is that almost the only criterion to be used is 
that global public interest and the mandate of an the organization affected is 
harmed. If I remember correctly, this was a point made by Stéphane. 

I will ask you tomorrow whether you share the view that we should focus on 
these points.

Even if the group chose to accept this as a factor unique to the organizations 
concerned, we still have to answer the question that this fear of the global 
public interest and mandate is at danger is real. 

Are there any projections for such harm taking place in new gTLDs (given the 
fact that we have numerous dotBrands where the risk of harm may be lower)? Any 
objective criteria, e.g. studies on infringements in new TLDs (e.g. xxx?)?

ad 2
As per our charter the minimum requirement is: Protection under treaties and 
statutes under multiple jurisdictions.
We can certainly add additional - positive or negative - criteria, but for the 
time being, let me focus on the above aspects.

What treaties shall be relevant? What needs to be protected by the treaty? How 
do we deal with the fact that even protection by treaty is limited and does - 
in many cases - not prevent certain cases of legitimate use? 

Will the fact that protections are limited in scope stop the group from 
granting protections entirely or will that be dealt with in the context of 
exemption procedures? 
Let us assume the group is willing to grant special protections on the basis of 
a narrowly defined group of qualifying organizations and designations whose 
eligibility can be checked in an objective manner maybe depending on additional 
admission requirements (as discussed on the respective spreadsheet). Then we 
can move to question 3.

ad 3
Looking at the Protections spreadsheet, (based on the assumption made above) 
all existing and new RPMs will be open to the qualifying organizations. Hence, 
the only option we need to discuss is the option in line 5, which is the 
modified reserved names list with an exemption procedure. 

What could this look like? Here is a very rough sketch:

- Organizations can have their designations added to a database (such as the 
TMCH database). Identical match strings will be added after validation. 
- Whenever a registration for an identical match is attempted, eligibility of 
the registrant will be checked before the domain name is registered. 
Eligibility is given either if an organization holding that designation is 
carrying out the registration or if the registrant is registering the domain 
name legitimately according to the exemption rules, i.e. where use is 
permitted).
- Registrations for eligible registrants will be carried out on a first come 
first served basis. 

Such approach would prevent unauthorized registrations from taking place. At 
the same time (since registrations are fcfs) there is a level playing field and 
eligible parties would not necessarily prevail over other legitimate 
registrants. 

One could even apply such method for the top level (taking into account the 
question of the applicability of the string similarity review) .

Perhaps this helps us getting some ideas of the options to move forward. 

Thanks,
Thomas