Key Topics to Follow During the ICANN 67 Community Forum in First-Ever All-Virtual ICANN Public Meeting

The 67th international meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) commences March 7.  Although the meeting was originally slated to take place in person in Cancun, Mexico, ICANN cancelled the in-person meeting in light of global health concerns relating to the COVID-19 virus.  However, the meeting will still take place in an all-virtual capacity, with a slightly scaled-back meeting schedule. Please note that all key sessions identified below reflect local time in Cancun (even though the meeting will take place solely through remote meeting rooms), and are subject to change.

Despite the unprecedented change in meeting format, we anticipate a number of important policy developments to take place during the meeting. This advisory highlights several high-profile topics that have emerged amid community discussions in the lead-up to this meeting, and which we anticipate will command the majority of attention during ICANN 67.

Access to Domain Name Registration Data

The ICANN Expedited Policy Development Process (EPDP) Phase 2 Working Group has been developing a proposed standardized system for access/disclosure to non-public domain name registration data (WHOIS data), following the global redaction of most public WHOIS data in 2018 in response to the GDPR.  In recent weeks, EPDP Phase 2 published its Initial Report on this subject for public comment.  The public comment period will run until March 23, 2020.

In the meantime, EPDP Phase 2 is turning its attention to other issues concerning the treatment of domain name registration data, including a possible distinction in treatment between data of natural persons versus that of legal entities (whose data is not subject to GDPR) and whether additional WHOIS data fields could once again be made public because they do not constitute personally identifiable information under the GDPR (such as the registrant city field).  These are key issues that will likely command substantial attention during ICANN 67, where the EPDP Phase 2 Working Group will be holding two dedicated sessions.  These are critical issues for brand owners, and are also highly contentious matters with substantial disagreement across different ICANN community stakeholders.  Thus, participation and input on these issues during ICANN 67 will be vital.

Key ICANN 67 Sessions

· EPDP Phase 2 Meeting (1 of 2) (Tuesday March 10, 9 – 11 am)

· GAC WHOIS and Data Protection Policy (Tuesday March 10, 11 am – 12 pm)

· Registration Data Policy Implementation Review Team (Wednesday March 11, 9 – 10:30 am)

· EPDP Phase 2 Meeting (2 of 2) (Thursday March 12, 10:45 am – 12:45 pm)

Rights Protection Mechanism Review

The Rights Protection Mechanism (RPM) Review Working Group has been working for several years to evaluate the efficacy of ICANN New gTLD Program RPMs, namely the Trademark Post-Delegation Dispute Resolution Procedure (PDDRP), Trademark Clearinghouse (TMCH), Sunrise, Trademark Claims, and Uniform Rapid Suspension (URS).  The Working Group is nearing the completion of its Initial Report, in which it will present its preliminary recommendations and conclusions regarding possible changes to these mechanisms, as well as open questions to the community about the mechanisms and possible changes.  The Working Group is expected to publish the Initial Report on March 18, 2020, soon after the ICANN 67 meeting.  During ICANN 67, the group is likely to review final proposed text of the Initial Report and make any final refinements before the March 18 publication date.

While we do not anticipate any significantly contentious issues to arise as the Working Group finalizes its Initial Report, it will still be important to track these discussions, and perhaps more importantly that brand owners begin to gear up to respond to the Initial Report itself once published in the coming weeks.

Key ICANN 67 Sessions

· Rights Protection Mechanism Review Working Group Meeting (1 of 4) (Monday March 9, 1:45 – 3:15 pm)

· Rights Protection Mechanism Review Working Group Meeting (2 of 4) (Tuesday March 10, 1:30 - 3 pm)

· Rights Protection Mechanism Review Working Group Meeting (3 of 4) (Wednesday March 11, 10:45 am – 12:15 pm)

· Rights Protection Mechanism Review Working Group Meeting (4 of 4) (Thursday March 12, 2:45 – 3:45 pm)

New gTLD Subsequent Procedures Issues

The New gTLD Subsequent Procedures Working Group has been evaluating the 2012 round of new gTLDs and developing policy recommendations and implementation guidance for future new gTLDs.  The group is in the process of finalizing text for a Final Report, including recommendations on some fairly contentious issues.  Perhaps most importantly for brand owners is the issue of “closed generic” gTLDs – gTLDs where the applicant is seeking exclusive operation of the gTLD but where the gTLD is a generic term.  This issue was not specifically addressed in the 2012 new gTLD program Applicant Guidebook, and was raised by the Governmental Advisory Committee (GAC) as a possible competition concern.  The issue is discussed at length here.

The ICANN Board ultimately passed a resolution in 2015 prohibiting closed generic gTLDs in the 2012 round, giving applicants for such gTLDs the option to convert the application to an open generic gTLD, withdraw the application, or defer the further processing of the application until a subsequent new gTLD application period following a community-developed policy on closed generic gTLDs (i.e. one developed by the New gTLD Subsequent Procedures Working Group).  Despite the clear anti-competition risks associated with closed generic gTLDs, many in the ICANN community believe they should not be prohibited going forward and the Working Group to date has not been able to identify a clear consensus view on the issue.

Thus, discussions on this and other issues during ICANN 67 may provide extremely important as the New gTLD Subsequent Procedures Final Report continues to take shape.

Key ICANN 67 Sessions

· New gTLD Subsequent Procedures Working Group Meeting (1 of 3) (Monday March 9, 12:15 – 1:15 pm)

· GAC Update on Current Issues: New gTLD Subsequent Procedures (Monday March 9, 2:30 – 3:15 pm)

· New gTLD Subsequent Procedures Working Group Meeting (2 of 3) (Tuesday March 10, 12 – 1:30 pm)

· GAC Follow-Up Discussions on New gTLD Subsequent Procedures (Tuesday March 10, 1:30 – 2:30 pm)

· GAC Follow-Up Discussions on New gTLD Subsequent Procedures (Wednesday March 11, 9:30 – 10:15 am)

· GAC Wrap-Up on New gTLD Subsequent Procedures (Wednesday March 11, 10:30 – 11 am)

· New gTLD Subsequent Procedures Working Group Meeting (3 of 3) (Thursday March 12, 10:45 am – 12:45 pm)

Domain Name Abuse and Contractual Compliance

Although there will likely be less opportunity for community discussions on the issue of domain name abuse and ICANN contractual compliance at ICANN 67, it has been a featured topic at each of the last recent ICANN meetings and there are still a few sessions where these issues will be the focus. Accordingly, we do expect at least some dialogue to take shape during this meeting on these issues, which are of great importance to intellectual property owners given the implications of ICANN and domain industry treatment of infringement and related issues under the umbrella of DNS abuse.  It will be important to participate in discussions on these issues during ICANN 67 to ensure brand owner views are not overlooked.    

In particular, it is important to continue to press for a community consensus definition for domain name abuse that explicitly covers online trademark and copyright infringement, for enhanced enforcement of  existing registry and registrar anti-abuse requirements, and for improvements to these requirements that specifically require registries and registrars to take a more active role in combating such abuse.

Key ICANN 67 Sessions

· At-Large Policy Session: DNS Abuse – An At-Large Call to Action (Monday March 9, 1:45 – 3:15 pm)

· At-Large Policy Session: Tools for Holistic Contract Compliance (Monday March 9, 3:30 – 5 pm)

· GAC Public Safety Working Group Meeting (Wednesday March 11, 9 – 9:30 am)

We hope that this advisory provides you with unique insight into several major areas of impact and interest for brand owners in the Internet policy space, and highlights why brand owners should be involved in and aware of ICANN policy-making efforts. The ICANN 67 meeting will take place from March 7 – 12, 2020. A link to the full meeting schedule is available here.

For more information about these topics, please contact any of the following team members. In addition, our team will be available to provide real-time, daily coverage of key meeting sessions. If you are interested in receiving our Eye on ICANN reports, or in-depth coverage of particular sessions of interest, please contact us at icann@winterfeldt.law.

Brian J. Winterfeldt + 1 202 759 5833 brian@winterfeldt.law  

Griffin M. Barnett + 1 202 759 5836 griffin@winterfeldt.law

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