Sunrise Recommendation #2 The Working Group recommends that the Registry Agreement for future new gTLDs includes a provision stating that a Registry Operator shall not operate its TLD in such a way as to have the effect of circumventing the mandatory RPMs imposed by ICANN or restricting brand owners’ reasonable use of the Sunrise rights protection mechanism. |
Context:
The Working Group generally agreed that some Registry Sunrise or Premium Name[1] pricing practices have limited the ability of some trademark owners to participate during Sunrise. The Working Group is aware of cases where the Registry Operator practices may have unfairly limited the ability of some trademark owners to participate during Sunrise, when pricing set for the trademark owners was significantly higher than other Sunrise pricing or General Availability pricing. The Working Group noted that this problem seems sufficiently extensive that it requires a recommendation to address it. Hence the Sunrise Recommendation #2 has been put forth for public comment.
Nevertheless, the Working Group also had diverging opinions on whether registry pricing is within the scope of the PRM PDP Working Group. While some Working Group members expressed concerns about the interplay of Registry pricing with RPMs obligations, some Working Group members pointed to the Registry Agreements that state that registry pricing is not within the scope of the RPM Working Group due to the picket fence[2]. Specifically, Section 1.4.1of Specification 1 of the Registry Agreement and Section 1.4.1 of the Consensus Policies and Temporary Policies Specification of the Registrar Accreditation Agreement[3] respectively specify that Consensus Policies shall not prescribe or limit the price of Registry Services and Registrar Services.
[1] Premium Name: second level domain names that are offered for registration that, in the determination of the registry, are more desirable for the purchaser. Premium Pricing: second level domain names that are offered for registration, that in the determination of the registry are more desirable for the purchaser, and will command a price that is higher than a non-premium name.
[2] Picket Fence: In its original agreements with ICANN, registries and registrars agreed to comply with “consensus” policies adopted by ICANN provided (i) that such policies did not unreasonably restrain competition and (ii) that the policies related to: 1) issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, technical reliability and/or stable operation of the Internet or domain-name system; 2) registry policies reasonably necessary to implement Consensus Policies relating to registrars; and 3) resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names), and do not unreasonably restrain competition. ICANN’s policy making mission, as described previously, creates a “picket fence”around ICANN’s authority -- ICANN can only mandate registry and registrar compliance with policies affecting issues inside the “picket fence”; ICANN could establish policy and/or best practices affecting issues outside the picket fence, but could not mandate registry and registrar compliance with such policies. Learn more: https://gnso.icann.org/sites/default/files/file/field-file-attach/picket-fence-overview-23jan19-en.pdf
[3] Section 1.4.1 of Specification 1 of the Registry Agreement and Section 1.4.1 of the Consensus Policies and Temporary Policies Specification of the Registrar Accreditation Agreement state the following: “In addition to the other limitations on Consensus Policies, they shall not prescribe or limit the price of Registrar Services”. See page 43 of the Base Registry Agreement (updated 31 July 2017): https://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-31jul17-en.pdf and page 57 of the 2013 Registrar Accreditation Agreement: https://www.icann.org/en/system/files/files/approved-with-specs-27jun13-en.pdf.