Nick Wood of the Cyberspace Team provides the latest update on developments at ICANN.

Bottom-up, consensus-based policy making is an uncertain process. ICANN has been working at it for 20 years now, trying to balance the interests of commercial, non-commercial, business and IP owners. It does not get any easier.

MARQUES participates via the IPC (Intellectual Property Constituency) in the process, feeding in ideas, trying to shape discussions to protect brand owner interests. Currently one of our members, Flip Petillion, sits on ICANN’s GNSO Council, its 21-member policy-making body. Other members of the Cyberspace Team can frequently be found around midnight on calls and web conferences.

In early May, MARQUES submitted comments on two of ICANN’s policy initiatives of importance to our members.

The gTLD Rights Protection Mechanism (RPM) review

An ICANN Working Group (WG) has been reviewing RPMs in gTLD registries, most of which were introduced since the 2012 new gTLD round.

The WG overran its planned two-year period by two years. What seemed relatively simple – reviewing the effectiveness of RPMs in the 2012 round of new gTLDs – turned into a nightmare including:

•      A lack of subject-matter expertise – the wrong tone was set early when one of the three co-chairs (from an academic background) asked: “why do trade marks need protection?”

•      A review member who threatened legal action against other members before being removed

•      Market research efforts that proved inconclusive – in the end it fell to a small member of very hard-working experts on the IPC to rescue the initiative.

MARQUES’ comments – submitted through a fiendishly cumbersome online questionnaire of almost 200 questions with word limits – called for improvements in some areas: for example, financial deterrents for cybersquatting and for geographic indications to be included in the Trademark Clearing House. Where consensus could not be reached, we called for maintaining the status quo – i.e. no change rather than tinkering with established practice.

The second part of the WG’s review of RPMs will start later this year, focussing on the UDRP. The UDRP is so important that we need to be at the top of our game to prevent the tinkering of non-commercials and academics from undoing the only cross-border, cost-effective mechanism for resolving bad faith domain registration. We have 20 years of jurisprudence to protect.

The Expedited Policy Development Process (EPDP) on the Temporary Specification for gTLD Registration Data

In anticipation of GDPR in May 2018, ICANN restricted access to gTLD Whois data.

By doing so, key registrant details were removed from the public record of registration for gTLDs including .com, making the task of tracking abusive registrants almost impossible.

A working group convened by ICANN’s GNSO Council – the EPDP team – is working on a framework for replacing access to non-public registration data. This includes, crucially, a System for Standardised Access/Disclosure (SSAD) for accredited users, including brand owners.

Chaired with an iron fist by a former Under-secretary of State in Latvia – Jānis Kārklinš – it is moving much quicker than the RPM review. Valid concerns have been raised that important issues – notably data accuracy – are being sidelined due to pressure to complete the current phase of work on time (the current Chair is available only until 30 June 2020).

However, the EPDP’s high-level recommendations, supported by MARQUES, are moving us towards an SSAD with the accreditation of users including law enforcement, brand owners and cybersecurity researchers. Clear and coordinated guidance from European Data Protection Authorities on the legal impacts of such a model will be very welcome to ensure the system works.

Nick Wood is Executive Chairman of Com Laude/Valideus and a member of the MARQUES Cyberspace Team and MARQUES Council.

Read more news from the Cyberspace Team here.