February 2012 - Bc-gnso - lists.icann.org

for expedited review: draft BC comment on registry proposal for Continuity Operations Instrument (COI)
by Steve DelBianco April 17, 2012

April 17, 2012

Per discussion in Dakar and on our 10-Nov member call, here is a draft of BC comments on the a proposed alternative to the for Continuity Operations Instrument in the new gTLD Program. Jon Nevett prepared this draft. This comment period and docs are described here<https://www.icann.org/en/public-comment/rysg-proposal-cof-17oct11-en.htm>. These comments are due 2-Dec, giving us 10 days for review and approval. This is less than the 14-day period required in our charter, so I am requesting an expedited review period. If any member has substantive objections to the expedited review, we can go to 14 days and submit our comments after the ICANN due date. All BC members are invited to suggest edits. Please use track changes and circulate to BC list. Thanks again to Jon for taking the lead on this. Steve DelBianco vice chair for policy coordination, BC

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ALERTS From the Secretariat: Meeting Invitation / ICANN Academy Webinar: 02.03.12 @ 12:00 UTC
by Benedetta Rossi Feb. 29, 2012

Feb. 29, 2012

Dear BC Members, Please find below the details for a webinar taking place on Friday March 2nd 2012 at 12 UTC hosted by the At Large Academy WG. Kind Regards, Benedetta Rossi BC Secretariat https://community.icann.org/display/gnsobc/Home www.bizconst.org bc-secretariat(a)icann.org Dear All, The *At-Large ICANN Academy WG* is hosting a *webinar* on *Friday 02 March 2012 at 12:00 UTC*, to introduce and discuss their proposal for the establishment of an ICANN Academy, an annual training program for newly appointed ICANN AC/SO officers and ICANN Board members. The webinar will review the proposal for the Academy, including timeline for the program and curriculum. For other times: *http://tinyurl.com/7yzlkp6* The draft agenda (to be updated) and participation details are available under https://community.icann.org/x/1p-bAQ This call will be held in English only due to insufficient demand for interpretation. If you require a *dial-out *please contact At-Large staff at: staff(a)atlarge.icann.org <mailto:staff@atlarge.icann.org>. Thank you. Regards, Heidi Ullrich, Silvia Vivanco, Matt Ashtiani, Gisella Gruber and Nathalie Peregrine ICANN At-Large Staff E-mail: staff(a)atlarge.icann.org <mailto:staff@atlarge.icann.org>

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ALERTS From the Secretariat: REMINDER: Pre-Costa Rica ICANN Policy Update Webinar Invitation
by Benedetta Rossi Feb. 28, 2012

Feb. 28, 2012

Dear BC Members, Please find below a reminder from the GNSO Secretariat, regarding the upcoming Pre-Costa Rica Policy Update Webinar. Please RSVP to the GNSO Secretariat if you wish to attend the webinar, following the instructions below. Kind Regards, Benedetta Rossi BC Secretariat https://community.icann.org/display/gnsobc/Home www.bizconst.org bc-secretariat(a)icann.org http://www.icann.org/en/announcements/announcement-03feb12-en.htm Pre-Costa Rica ICANN Policy Update Webinar Invitation 3 February 2012 *In order to participate, please RSVP via email to the GNSO Secretariat** *(***gnso.secretariat(a)gnso.icann.org <mailto:gnso.secretariat@gnso.icann.org>**) to receive the call details.* Whether you plan to participate in the upcoming ICANN meeting in Costa Rica remotely or in person, you're invited to a quick reminder of the background and current status of each major policy issue currently under discussion in ICANN. The ICANN Policy Staff will provide a briefing on *Thursday 1 March at 13.00 UTC and Thursday 1 March at 20.00 UTC*, summarizing policy issues across the different ICANN Supporting Organizations, namely the Generic Names Supporting Organization (GNSO), Country Code Names Supporting Organization (ccNSO) and Address Supporting Organization (ASO). Amongst other topics, updates will be provided on: * Inter-Registrar Transfer Policy * RAA Improvements * Consumer Choice, Competition and Innovation * Study Group on Use of Names for Countries and Territories * Framework of Interpretation Working Group for the delegation and re-delegation of ccTLDs * Joint DNS Security and Stability Analysis Working Group * Participation and Engagement activities in Costa Rica The two sessions are duplicates, scheduled to accommodate different time zones. Each session, scheduled to run for 90 minutes, will be conducted in English only. The meeting will be run in Adobe Connect with a slide presentation along with a dial-in conference bridge for audio. Participants will have the opportunity to ask questions at the end of each session. During the course of the webinar, questions may be submitted using the chat function of Adobe Connect. If you are not able to participate in either of the live sessions, the recording of the session will be made available shortly after the meeting. The policy staff is always available to answer any questions that you email to policy-staff(a)icann.org <mailto:policy-staff@icann.org>. In order to participate, please RSVP via email to the GNSO Secretariat (gnso.secretariat(a)gnso.icann.org <mailto:gnso.secretariat@gnso.icann.org>) to receive the call details. Please indicate which call you would like to join, Thursday at 13.00 UTC or Thursday at 20.00 UTC (to convert those times into your local time, see: http://www.timeanddate.com/worldclock/fixedform.html) We will send you an e-mail reminder before the event with log-in and dial-in details. Please DO NOT RSVP to any other ICANN staff members e-mail address. Glen de Saint Géry GNSO Secretariat gnso.secretariat(a)gnso.icann.org <mailto:gnso.secretariat@gnso.icann.org> http://gnso.icann.org

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ALERTS From the Secretariat: Redesigned ICANN.ORG launches today!
by Benedetta Rossi Feb. 28, 2012

Feb. 28, 2012

Dear BC Members, Please find below an announcement sent on behalf of Scott Pinzon, regarding the redesign of ICANN.ORG Kind Regards, Benedetta Rossi BC Secretariat https://community.icann.org/display/gnsobc/Home www.bizconst.org bc-secretariat(a)icann.org The redesign of ICANN.ORG <_http://ICANN.ORG_> just went live today, 27 February. The new information architecture arranges the resources that ICANN.ORG offers in a more logical style. More than 38,000 pages and files were carefully examined and migrated into the best locations, following extensive consultation with the ICANN community: 1. Nearly 300 responses to the site survey conducted by The Revere Group 2. More than two dozen in-depth interviews with SO and AC members 3. A series of live briefings (with Q&A) across two ICANN public meetings 4. At least three briefings to Board Directors (via the Public Participation Committee) 5. Two public webinars requesting input and concerns Some of the new features on the site include: * All visitors can now move directly from ICANN's home page to your SO or AC site in one click . * The latest Board activity and the most recent topics open for Public Comment now show on the home page. * The new Planet ICANN feed mixes almost every RSS and Twitter feed from ICANN in one ever-updating resource, providing a handy tool for monitoring ICANN developments broadly. * The new Stay Connected bar provides site visitors with easier social media integration to ICANN than we've had before. * Across HTML portions of the site (thus, not in PDFs), you can now hover your cursor over that puzzling acronym, and what it stands for will pop up, spelled out, as a "tool tip." * For the first time, ICANN's site can auto-detect when it is accessed via a mobile device such as a tablet or smart phone, and present a view speciically tailored for the visitor's type of device. * On the home page's multi-lingual bar, you can click your chosen language to immediately see an aggregation of all materials available in that language. The most recent documents top the list. Note that the changes affect, quite literally, ICANN.ORG, and not other ICANN sites such as gnso.icann.org, alac.icann.org, the wiki sites, and so on. If you'd like to provide feedback or ask questions about the new look and feel, please feel free to email communications(a)icann.org Thanks also for your patience and support during the careful process that has brought us to this milestone. We're far from done, but I hope you'll see the newly redesigned site as a significant improvement in making ICANN's work more understandable and inclusive. Best Regards, Scott Pinzon Director of Marketing and Outreach ICANN

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result of review period on BC suggested implementation improvements
by Steve DelBianco Feb. 27, 2012

Feb. 27, 2012

This is a follow-up regarding BC suggestions for implementation improvements to the new gTLD program. In late December, Marilyn and I circulated a draft improvements letter from the BC drawing on prior BC positions. My records show that we received email objections to that letter from 4 BC members: Mikey O'Connor 29-Dec Bill Smith (Paypal) 29-Dec Mike Rodenbaugh 29-Dec Mike Palage 30-Dec I concluded that this showed "initial significant disagreement" per our charter: 7.3. Approval where there is initial significant disagreement. Members who seek changes to a draft should submit proposed language in writing. If there are at least 10% of members who oppose a position a mechanism to discuss the issue will be provided by the Vice Chair for policy coordination. This may be an e-mail discussion, a conference call or discussion at a physical meeting. So we opened a formal review & comment period from Feb 3 thru Feb 17 on the two detailed tables of improvements and prior positions. (attached) My records show we received written comments from 9 members (listed at bottom). To summarize: Mike Rodenbaugh registered his objection, as he did in December. Phil Corwin disagreed with some of the improvements. We also recorded written Support from 7 members, many with additional comments. Sec 7.4 of our Charter guides us on "Approval where there is continued disagreement": 7.4. Approval where there is continued disagreement. Where the discussion mechanism indicates a split in the Constituency of more than 15% of the number of members, there will then be a vote (typically by e-mail) on the position. During the formal comment period, we recorded 2 objections. Combined with the December comments, we had 5 members objecting (Mike Rodenbaugh was in both counts). 5 member objections do not meet the 15% threshold that would trigger a formal ballot. ( 46 x .15 = 6.9 ) We therefore do not need to conduct formal voting, and the list of implementation improvements are now considered an official BC position. The attached letter to the ICANN Board was created by extracting the first column of the two tables, plus some additional context. It will be sent to Crocker and Beckstrom, with cc to GAC Chair. It will also be posted today to the ICANN Public Comment on defensive applications at the top level, citing our first recommendation on TLD applications and attaching the full list. Just let me know if members have questions about process or substance on this. --Steve ----- Mike Rodenbaugh: No comments on section 1. Mike objects to Section 2, saying recommendations are not clearly described and are missing essential details and justifications (e.g. "Do Not Register") Yvette Miller (CADNA): no comments on section 1. No objections in section 2, but offered comments: Supports suggestion that Non-profit applicants should not be sent to auction. Also says non-profits should get Applicant Support. Strongly supports "Do Not Register" and endorsed the ICM method of permanent blocking. Strongly supports date-certain for next round. Ron Andruff supported CADNA comments. Phil Corwin (ICA): Section 1, comment on URS: concerned that Transfer option makes URS a substitute for UDRP. Okay with TM Claims notice for any name previously suspended in URS. Section 2, regarding CADNA's point (5): ICA disagrees with special treatment of all non-profits. Phil disagrees with JAS, on principle that subsidies are resource transfers that go beyond ICANN's mandate. Phil is checking with ICA members on "Do Not Register" Unrealistic to expect Board to set a date-certain for next round. Marilyn Cade: Section 1 agreement, with explanatory comments Yes on all Section 2 improvements, with explanatory comments Sarah Deutsch (Verizon): Section 1 agreement, with explanatory comments Yes on all Section 2 improvements, with explanatory comments Martin Sutton (HSBC): Yes on all Section 2 improvements, with explanatory comments Jeff Brueggeman (ATT): Yes on all Section 2 improvements Lane Mortenson (Wells Fargo) Section 1 agreement, with explanatory comments Yes on all Section 2 improvements

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Save the date: BC Members Pre Costa Rica call: Monday 5th March 2012 @ 11am EST
by Benedetta Rossi Feb. 27, 2012

Feb. 27, 2012

Dear BC Members, Please save the date for the upcoming BC Members Pre Costa Rica call, taking place on *Monday March 5th 2012 at 11am EST (4pm UTC/5pm CET).* Dial in details and agenda will follow. Please let me know if you require a dial out for the call. Thank you, -- Kind Regards, Benedetta Rossi BC Secretariat https://community.icann.org/display/gnsobc/Home www.bizconst.org bc-secretariat(a)icann.org

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Costa Rica Preparation, please respond
by Benedetta Rossi Feb. 27, 2012

Feb. 27, 2012

Dear BC Members, Thank you ever so much for your prompt reply concerning your attendance in Costa Rica, that was incredibly helpful for the preliminary preparation of social events and activities. It is now confirmed that the BC will have a social event with the Board, and with local businesses, date and venue to be confirmed. As the meeting approaches, I now need to ask you to please supply me with the usual pre-meeting information: Arrival/Departure Date Hotel Name Contact details whilst in Costa Rica Extra guests attending BC Social Events I would also like to remind you that on Stakeholders Day in Costa Rica, the Cross Constituency breakfast is scheduled to have the GAC as guest. For this event, we will be printing an updated version of the "Meet the BC" document to hand out to the Government Representatives. If you haven't already done so, please supply me with your picture and/or biography for me to add to the document asap. The document needs to be printed in time for the meeting, so it would be great if I could receive extra bios as soon as possible. Thank you ever so much for your help, I'm looking forward to seeing you all in Costa Rica! -- Kind Regards, Benedetta Rossi BC Secretariat https://community.icann.org/display/gnsobc/Home www.bizconst.org bc-secretariat(a)icann.org

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Last chance to be in Meet the BC Doc for Costa Rica
by Benedetta Rossi Feb. 25, 2012

Feb. 25, 2012

Dear BC Members, This is the last announcement concerning the "Meet the BC" publication: if you want to have your bio and picture in the document please send it to me by Monday, Feb. 27th. I need to add them to the document and send them to our graphic designer to make the changes and then send them to print. With the Costa Rica meeting approaching we are running out of time, so there won't be another chance to submit bios and pictures after Monday. Thank you ever so much for your understanding, -- Kind Regards, Benedetta Rossi BC Secretariat https://community.icann.org/display/gnsobc/Home www.bizconst.org bc-secretariat(a)icann.org

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FW: ICA Webpost -- ICANN Should Investigate NAF’s UDRP Practices
by Phil Corwin Feb. 24, 2012

Feb. 24, 2012

FYI-- http://internetcommerce.org/NAF_UDRP_FAIL ICANN Should Investigate NAF’s UDRP Practices Submitted by Philip Corwin on Fri, 02/24/2012 - 19:47 On February 23rd the ICA sent a letter to ICANN requesting that it initiate an immediate investigation of the UDRP arbitration practices of the Minneapolis, Minnesota-based National Arbitration Forum (NAF). NAF is the number two provider of UDRP arbitration services, led only by the World Intellectual Property Organization (WIPO) – in 2010, WIPO handled 2,696 UDRP filings while NAF’s total was 2,177. NAF has been regarded warily by domain registrants for some time. It entered into a consent decree with the Minnesota Attorney General in 2009 - after being sued by that law enforcement agency for “consumer fraud, deceptive trade practices, and false advertising” - in which it agreed to exit the consumer credit and collections arbitration field. Yet so far as we know that well-publicized embarrassment provoked no inquiry from ICANN as to whether NAF should remain an accredited UDRP provider. Statistical studies have also indicated that NAF relies on a very small pool of “neutrals” to perform the majority of its UDRP cases, and that these favored few find for complainants substantially more than average. Our request for the investigation was prompted by two recent cases that fell far below even NAF’s usual standards, and that belie any perception of even-handed treatment of registrant rights. In the first case a “rights holder” was awarded a generic domain whose name was identical to the rights it had disclaimed in order to get its US trademark approved. In short, it had no relevant rights, and in our view the case should have been summarily dismissed for bad faith attempted reverse domain name hijacking. In the second case, an initial three paragraph complaint was unilaterally amended at the 11th hour, in violation of relevant ICANN UDRP Policy, by a 191-page supplemental filing. The decision for complainant handed down just four working days later -- before the registrant had any meaningful opportunity to respond to what amounted to an entirely new filing. These two decisions have already caused one Internet law expert to opine: “Charades of adjudication such as the ones described here make us seem to our clients to be part of some racket, almost like the old Soviet “lawyers” who were paid to help put you in jail.” http://www.likelihoodofconfusion.com/the-domain-game/ Practices like this, if tolerated by ICANN, undermine whatever faith remains in the UDRP as an even-handed process. ICANN has accredited entities like NAF to be UDRP arbitration providers, which empowers them to extinguish or transfer the valuable intangible rights represented by a domain name. The fact that the GNSO (ICANN’s internal policymaking body) has unwisely chosen to defer the initiation of a UDRP reform inquiry until mid-2014 at the earliest does not mean that ICANN can absolve itself of the responsibility to exercise some oversight over the UDRP arbitrators it has accredited. Domain registrants should not be expected to tolerate these types of shoddy practices until 2016 or later, which is the soonest that any UDRP procedural reforms emerging from a policy development process could be expected to take effect. ICANN also needs to realize that a fairly administered UDRP regime is not only crucial to current registrants in the existing gTLDs but to the future registrants who will decide whether its new gTLD program is a success or failure. In addition to the UDRP, registrants in new gTLDs will also be subject to the thoroughly untested Uniform Rapid Suspension (URS) proceeding. If this is the type of “justice” that registrants can expect to be meted out in return for NAF’s $1300 UDRP filing fee (1-2 domains, single member panelist), what can they expect under the URS, which ICANN has promised trademark interests will cost a mere $300 for filings against one or multiple domains held by the same registrant? (To their credit, both NAF and WIPO have indicated that no credible process can be provided at that bargain basement rate, which may explain why ICANN is months late in initiating a URS implementation process). Some may view our request as too much ado over domains that have annual registration costs of less than $10. But that entirely misses the point. Aside from the fact that the secondary marketplace puts a high value on non-infringing generic domains, making them valuable intangible assets every bit as worthy of respect as trademarks, there are bigger issues at stake. The recent PIPA/SOPA Internet blackout arose out of concern over domain censorship as a result of ISP and search engine blocking. If those are major concerns for Netizens, then what about domain “theft” carried out under color of a purportedly balanced process? That’s the ultimate in censorship. While there are more than twice as many Facebook users as registered domains, domains nonetheless remain the only true guarantee of Internet freedom. Users of Facebook, Google+, Apple Apps, Twitter, and all other manner of social networking intermediaries and software do not own their identities on those platforms and are subject to corporate policies that can change on a whim. But a non-infringing domain operated in conformity with applicable law can be one’s perpetual Internet identity, printing press, and business– so long as it receives protection against overreaching trademark interests abetted by a system that makes a mockery of registrant due process rights. In no way do we condone cybersquatting – but we do take issue with attempts to hijack domains in which the complainant has no legitimate rights; as well as expansive views of what constitutes a “confusingly similar” domain that, carried to logical conclusion, would make most of the DNS subject to trademark holder takeover. ICANN needs to look into this matter and do the right thing on behalf of all domain registrants. In that process, it should invite input from registrants and counsel who believe they have been mistreated by NAF, and it should make the results of its findings public. After all, it is an organization that professes its commitment to transparency and accountability. We have also suggested that, if ICANN finds NAF to have been operating in an unacceptable manner, it should be subject to a ‘consent decree’ that requires it to mend its ways as a condition of continued accreditation to administer UDRP cases. In short, let’s have a UDRP regime that is even-handed in both perception and reality. Our letter to ICANN follows: VIRTUALAW LLC Philip S. Corwin, Founding Principal 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell psc(a)vlaw-dc.com February 23, 2012 By E-mail Mr. Steve Crocker, Chairman of the Board Mr. Rod Beckstrom, President Internet Corporation for Assigned Names and Numbers (ICANN) 4676 Admiralty Way, Suite 330 Marina del Rey, CA 90292-6601 Re; Request for Initiation of Immediate Investigation into UDRP Practices of the National Arbitration Forum (NAF) Dear Chairman Crocker and President Beckstrom: On behalf of the members of the Internet Commerce Association (ICA) I am requesting that ICANN staff immediately initiate an investigation of the practices of the National Arbitration Forum (NAF) in its administration of ICANN’s Uniform Dispute Resolution Policy (UDRP). Two recent NAF decisions have further heightened already prevalent concerns among domain investors and developers in regard to NAF’s lack of adequate quality control in its handling of UDRP cases, as well as the perception that it is willing to sacrifice the substantive and procedural rights of domain registrants to encourage forum shopping by complainants. ICANN has chosen not to enter into binding contracts with accredited UDRP providers, which in our view is an unwise choice that results in a lack of clear delineation of their powers and responsibilities, and deprives ICANN of flexible enforcement powers to assure that UDRP administration is indeed “Uniform” within and among accredited providers. We nonetheless believe that ICANN has a fundamental responsibility to exercise oversight over those entities it has empowered to extinguish or transfer domains. A failure to make adequate inquiry into NAF practices would be an abdication of that responsibility and would communicate the message that ICANN is not protective of the valuable intangible rights of domain name registrants. That impression has already gained traction in the wake of the GNSO’s December 2011 decision to defer the initiation of any inquiry into UDRP reform until mid-2014 at the earliest, notwithstanding the substantial input received from multiple ICANN constituencies that UDRP review was overdue, particularly in regard to procedural matters. Preexisting Concerns About NAF Along with WIPO, NAF is one of the two principal UDRP forums. Our understanding is that WIPO, while far from perfect and notwithstanding its strong ties to intellectual property (IP) interests, is perceived by registrants and their counsel as doing a far better job in producing predictable and consistent UDRP decisions of a generally good quality in conformance with ICANN Policy, while maintaining an even-handed approach in such procedural matters as the selection of examiners. NAF, to the contrary, is regarded warily. As you should be well aware, NAF was sued in July 2009 by the Office of the Attorney General of Minnesota, which alleged that “[t]hrough its conduct, the National Arbitration Forum has violated Minnesota’s statutory prohibitions against consumer fraud, deceptive trade practices, and false advertising” http://www.ag.state.mn.us/PDF/PressReleases/SignedFiledComplaintArbitration… . Just days after that lawsuit was filed, NAF entered into a consent decree with the State of Minnesota in which it agreed to withdraw from arbitration activities for all consumer credit and collection disputes; prior to that withdrawal NAF had conducted more than 200,000 such arbitrations per year http://pubcit.typepad.com/files/nafconsentdecree.pdf . So far as we are aware, ICANN took no action to inquire into NAF’s administration of UDRP cases notwithstanding the wide publicity that its consumer arbitration withdrawal received. Within weeks after entering into the consent decree NAF issued a press release noting that it would continue to act as a UDRP arbitrator http://www.adrforum.com/newsroom.aspx?&itemID=1534&news=3 . A 2010 study documented that, while NAF listed a total of 141 UDRP panelists, a mere ten of them (7 percent) were assigned two-thirds (66.3 percent) of all UDRP arbitrations, raising questions regarding whether examiner selections were random or skewed http://www.dnattorney.com/study.shtml . The top five panelists who transferred the largest percentage of domains (found in favor of the complainant) were all among those ten most favored examiners, raising a perception that NAF may skew toward appointing examiners who favor complainants inordinately. The NAF examiner assigned the most cases – ten percent of all cases arbitrated during the review period – was sued in 2009 for judicial misconduct http://domainnamewire.com/2009/07/22/national-arbitration-forum-panelist-su… . It is our information that NAF routinely employs examiners who also act as counsel for complainants, but has rejected well-qualified counsel who tend to represent respondents. To the contrary, WIPO appears to have done a credible job in evenhanded panelist appointments. A similar study of WIPO panelist assignments found these results: Analyzing WIPO UDRP data from 1999 until early 2010, it turns out that the five WIPO panelists who have heard the most cases are in the bottom quartile when it comes to finding in favor of the complainant and transferring or canceling a domain. 8 of the top 10 busiest panelists are in the bottom quartile. In other words, there’s little possibility that cases are being handed to arbitrators because they’re more likely to rubber stamp them for the complainant.http://domainnamewire.com/2010/04/26/wipo-panelist-study-sheds-… It has also been reported that NAF provides its examiners with a law clerk-penned memo for each case to be decided. This additional document appears to violate UDRP Policy that an examiner should decide cases based entirely upon the submissions of the complainant and respondent, and is a practice that facilitates the issuance of hasty “cut and paste” decisions http://domainnamewire.com/2009/11/30/national-arbitration-forum-provides-sh… . There is no transparency as to the number and identity of these clerks, but they are likely employees of NAF, not third party neutrals, and have a substantial influence on the outcome of arbitrations. While many of the UDRP cases submitted to NAF appear to have been decided in a fair and well-thought manner, all of the above practices already indicated a lack of quality control and a perception of pro-complainant bias even prior to the issuance of the two badly flawed decisions that sparked this letter. The Decisions Attached to this letter are two memos prepared by the esteemed attorney Paul Keating of Barcelona, Spain. We will not repeat his detailed rendition of the relevant facts but focus on the most salient points. We would also add that the registrants of the domains at issue are not members of the ICA and are in no way known to us other than through these case histories and review of the NAF arbitration decisions. In the case of Hardware Resources, Inc. v. Yaseen Rehman, the complainant alleged that the domain hardwareresources.org was identical to and confusingly similar to its trademark for “HR Hardware Resources”. But the UDRP only provides protection for rights holders; it cannot create nonexistent rights or expand those that were lawfully granted. Had the examiner taken a minute to check on the complainant’s trademark filing with the U.S. Patent and Trademark Office (USPTO) he would have noticed that each of the relevant trademarks was accompanied by the following statement: “NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "HARDWARE RESOURCES" APART FROM THE MARK AS SHOWN.” In other words, the complainant had already conceded that it had no rights to the generic term “hardware resources” in order to obtain its U.S. trademarks. As Mr. Keating notes, “Trademark disclaimers are there for a reason; without the disclaimer the USPTO would not have issued the registration. It defies logic to permit a registration with a disclaimer and then support a trademark in only what has been disclaimed.” In our view the complaint should have been dismissed at that point accompanied by a finding of reverse domain name hijacking for bad faith filing. On this issue, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"; http://www.wipo.int/amc/en/domains/search/overview2.0/#46) states: 4.17 In what circumstances should a finding of Reverse Domain Name Hijacking or abuse of process be made? Paragraph 15(e) of the UDRP Rules provides that, if "after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding". Reverse Domain Name Hijacking is defined under the UDRP Rules as "using the UDRP in bad faith to attempt to deprive a registered domain-name holder of a domain name"…To establish Reverse Domain Name Hijacking, a respondent would typically need to show knowledge on the part of the complainant of the complainant's lack of relevant trademark rights, or of the respondent's rights or legitimate interests in, or lack of bad faith concerning, the disputed domain name…The fact of default by a respondent does not necessarily prevent a finding of Reverse Domain Name Hijacking in appropriate cases, and WIPO panels have on occasion entered such findings on their own initiative, especially where the complainant has intentionally attempted to mislead the panel by omitting material evidence.(Emphasis added) The fact that the Pakistani-domiciled respondent offered the domain to the complainant for $40 is hardly evidence of bad faith cybersquatting; rather, it is testimony to the apparent lack of sophistication of a registrant unaware that such a non-infringing generic domain could probably fetch at least $four figures in the secondary domain marketplace. Likewise, the fact that the respondent failed to participate in the UDRP is most likely due to a lack of knowledge regarding his rights or an inability to afford counsel. Again, relying upon the WIPO Overview, a default judgment need not favor the complainant in these circumstances: 4.6 Does failure of a respondent to respond to the complaint (respondent default) automatically result in the complainant being granted the requested remedy? Consensus view: A respondent's default does not automatically result in a decision in favor of the complainant…the complainant must establish each of the three elements required by paragraph 4(a) of the UDRP. Although a panel may draw appropriate inferences from a respondent's default (e.g., to regard factual allegations which are not inherently implausible as being true), paragraph 4 of the UDRP requires the complainant to support its assertions with actual evidence in order to succeed in a UDRP proceeding. There are many examples of cases (typically involving complaints based on wholly unsupported assertions or mere conclusory statements) to which there has been no response where (not withstanding such respondent default) the decision has nonetheless gone in favor of the respondent on grounds that the complainant has failed to prove its case. (Emphasis added) Finally, the fact that this generic domain resolved to a page featuring links to providers of hardware products and services is in no way evidence of bad faith. Again, with reference to the WIPO Overview: 2.6 Do parking and landing pages or pay-per-click links generate rights or legitimate interests in the disputed domain name? Panels have generally recognized that use of a domain name to post parking and landing pages or PPC links may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising from a "bona fide offering of goods or services" [see also paragraph 3.8 below] or from "legitimate noncommercial or fair use" of the domain name, especially where resulting in a connection to goods or services competitive with those of the rights holder. As an example of such permissible use, where domain names consisting of dictionary or common words or phrases support posted PPC links genuinely related to the generic meaning of the domain name at issue, this may be permissible and indeed consistent with recognized sources of rights or legitimate interests under the UDRP, provided there is no capitalization on trademark value (a result that PPC page operators can achieve by suppressing PPC advertising related to the trademark value of the word or phrase). By contrast, where such links are based on trademark value, UDRP panels have tended to consider such practices generally as unfair use resulting in misleading diversion. (Emphasis added) The second case is thatof Auto-Owners Insurance Company v. Nokta Internet Technologies. The problem in this case was gross procedural unfairness under NAF Supplemental Rules that are in conflict with ICANN’s own UDRP Policy. The original complaint was but three paragraphs in length and did not allege any bad faith registration on the part of respondent (a required element to find for complainant) but asserted simply that the respondent lacked legitimate interest in this generic domain because it contained PPC links to, not surprisingly, insurance products. Mr., Keating served as counsel to respondent and prepared a response explaining that the complainant’s asserted rights were in a non-distinctive design mark. At the 11th hour the panel then accepted a 191-page supplemental filing (13 pages of argument and 178 pages of exhibits) from the complainant, which the panel had not itself requested. Mr. Keating was in the process of preparing a response to this outsized supplemental filing when, a mere four working days after its receipt, the panel issued a 13-page decision in favor of complainant! The supplement was filed under NAF Supplemental Rule 7, which NAF panels have held to be controlled by ICANN Policy Paragraph 12, and which reads: 12. Further Statements In addition to the complaint and the response, the Panel may request, in its sole discretion, further statements or documents from either of the Parties. (Emphasis added) Complainant’s 191-page supplemental filing not only had not been requested by the panel, it essentially constituted an entirely new complaint to which respondent was not afforded adequate time to respond. This entire process was fundamentally unfair on its face. As Mr. Keating concludes: ICANN must resolve this issue. NAF’s SR7 is in inherent conflict with the UDRP which is the only binding obligation of the respondent. The ADR provider may not adopt rules that are in conflict with the UDRP and the panels may not enforce supplemental rules to the extent they are in conflict with the UDRP and the basic concept of fairness that is supposed to prevail under the Policy. By failing to address such abuse, ICANN is exposing the entire contractual arbitration process to distain and legal challenge. While not perfect, stability and inherent fairness is fundamental to the proper functioning of the UDRP. The panel (and NAF) in this case ignored both. Conclusion The two cases cited above are reportedly just the tip of the iceberg of NAF’s questionable arbitration of UDRP cases. ICANN has accredited NAF to act as a UDRP arbitrator, and if ICANN does nothing in response after being made aware of such conduct it will in effect be sanctioning practices that are at odds with fundamental notions of fairness and reasonable due process in UDRP adjudication. We urge ICANN to fully investigate NAF’s administration of UDRP cases and, if it finds that the NAF has engaged in practices that are biased against respondents, that are at odds with ICANN policy and procedures, and that fail fundamental standards of fairness and professional conduct, to condition NAF’s further accreditation as a UDRP provider upon its entry into a “consent decree” with ICANN – with violation of such agreement to result in withdrawal of accreditation. At a minimum, that decree should address such matters as: * · Practices designed to assure that selection of panel experts are random and unbiased. * · Limiting the basis of examiner decisions solely to the submissions of the two parties. * · NAF’s explicit recognition that a non-infringing generic domain’s links to products and services related to that domain name is consistent with recognized sources of rights or legitimate interests under the UDRP. * · Permanent dismissal of examiners who evidence an inability to inquire into such basic evidentiary elements as the legal basis for claim of trademark rights. * · Limitation of Supplemental Rules solely to administrative matters, and permanent deletion of all such Rules that are in conflict with ICANN Policy. These are but a start, and ICA would be pleased to put ICANN staff in touch with expert counsel who have represented respondents before NAF Panels and may well have additional suggestions for reform. In addition, given the fact that the decisions in the two cases cited above are insupportable on, respectively, substantive and procedural grounds, we hereby ask ICANN to immediately instruct the relevant registries and registrars that no transfer of the domains in question to the complainants should be undertaken until this matter has been fully investigated and resolved. If ICANN finds that these decisions lacked adequate basis or were fundamentally unfair it should seek to have the prior decisions vitiated and the cases reheard. Conclusion IP interests repeatedly assert that any digital infringement of their rights constitutes “theft”. But domains, like trademarks, constitute valuable intangible assets, and when a domain is transferred through a UDRP process that is procedurally and substantively flawed that is an even greater theft, because digital files can be infinitely and perfectly copied while only a single entity may control a domain. As ICANN undertakes a substantial expansion of the DNS through its new gTLD program, it is essential that the rights protection measures it employs are balanced in both substance and practice. NAF’s administration of the UDRP in the cases cited above appears to be seriously flawed and creates the appearance of substantial bias and ineptitude. ICANN has a responsibility to make serious inquiry into this matter and to take remedial action based upon its findings. Thank you for considering our request in this matter. Sincerely, Philip S. Corwin Counsel, Internet Commerce Association ICA Background ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. ICA members own and operate approximately ten percent of all existing Internet domains on behalf of their own domain portfolios as well as those of thousands of customers. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 10.0.1424 / Virus Database: 2113/4829 - Release Date: 02/24/12

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Costa Rica - departure tax
by Benedetta Rossi Feb. 24, 2012

Feb. 24, 2012

Dear BC Members, Please find below an announcement sent from the GNSO Secretariat regarding the airport tax in Costa Rica. Kind Regards, Benedetta Rossi BC Secretariat https://community.icann.org/display/gnsobc/Home www.bizconst.org bc-secretariat(a)icann.org -------- Original Message -------- Subject: [liaison6c] Costa Rica - departure tax Date: Thu, 23 Feb 2012 14:48:13 -0800 From: Glen de Saint Géry <Glen(a)icann.org> To: liaison6c <liaison6c(a)gnso.icann.org> Dear All, Heads up about airport tax on departure: You will need to pay a departure tax in Costa Rica before going back to the airport $32 dollars (US dollars. Do it at the RAMADA tour office and/or your hotel should offer you that service from their concierge. Do it early when you first check in or you can do at the Ramada ... don't forget ... they take credit card or cash at the hotel.Do not wait to do this at the airport as it's a mess, long lines, and I believe they only take cash (Costa Rica currency only) Thank you. Kind regards, Glen Glen de Saint Géry GNSO Secretariat gnso.secretariat(a)gnso.icann.org <mailto:gnso.secretariat@gnso.icann.org> http://gnso.icann.org

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