FYI, BC members who were not at yesterday's session on UDRP reform may find my remarks of interest. Feedback, as always, is welcome. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 2025598597/Direct 2025598750/Fax 2022556172/Cell "Luck is the residue of design" -- Branch Rickey From: Phil Corwin Sent: Thursday, June 23, 2011 06:28 AM To: Phil Corwin Subject: New ICA Webpost from Singapore re: UDRP Reform http://www.internetcommerce.org/node/277 ICA on the Record in Singapore on UDRP Reform Submitted by Philip Corwin on Thu, 06/23/2011 - 09:19 On Wednesday, June 22nd a session was held at the Singapore ICANN meeting regarding “The Current State of the UDRP”, including the recently issued Preliminary Issues Report on the UDRP which is open for public comment until July 15th. That Report generally recommends that a Policy Development Process (PDP) should not be initiated on the UDRP -- but that if the GNSO determines that further inquiry is desirable, it should be confined solely to procedural and administrative matters, and the next steps should be undertaken by UDRP “experts”. While ICA plans to file a formal comment on the Report, ICA Counsel Philip Corwin twice publicly addressed members of the panel conducting this session on behalf of ICA’s members. The main points made in his remarks were: • The coming proliferation of new UDRP providers, along with hundreds of new gTLDs, requires that ICANN enter into a standard agreement with all UDRP providers in order to assure that the application of the UDRP remains uniform and that new providers do not encourage forum shopping by complainants. • Most of the important procedural and administrative issues of concern to registrants will naturally be addressed in the development of such a standard agreement. • The development of such a standard agreement is unrelated to the new rights protections developed for new gTLDs and therefore need not and should not wait on experience with their use. • The URS policy developed for new gTLDs should be regarded as a substantive aspect of UDRP policy and its application to incumbent gTLDs like .Com should not be considered until there has been substantial experience with it and an objective analysis undertaken and published based on that experience. Therefore, any consideration of imposing the URS on incumbent gTLDs should be deferred until at least summer 2016 – five years after the Singapore meeting. • Any further steps on this matter must be open to participation by the entire ICANN community and not just confined to a small group of “experts”. A transcript of his remarks, edited solely for accuracy and clarity, follows. The full transcript of the session as well as associated materials can be found at http://singapore41.icann.org/node/24551 --
PHILIP CORWIN: Thank you very much, Mary. I am Phil Corwin. I am counsel with the Internet Commerce Association. Speaking on their behalf, our members own or manage about 20 million domains, about one out of every ten domains currently registered, so we have a significant interest in this topic. I will be quite brief. The UDRP is pretty good, but there is nothing that can't stand to be improved, and there's nothing that should be forbidden to be looked at after a dozen years of use. I think there's a big issue being ignored here, which is the most important word in UDRP, which is "uniform." We are entering a new world of not just proliferating gTLDs but proliferating UDRP providers. There have been applications not yet acted on during the last two years, one from a group in India, one from a group in Jordan. There will be more. The WIPO-NAF duopoly that has existed over the last dozen years is going to continue to erode and the only way to assure uniformity in the UDRP process is to establish a standard agreement between ICANN and the providers. And that is not only needed to assure uniformity, but it's also just unconscionable that ICANN empowers entities with the power to extinguish, suspend, or transfer valuable, intangible assets that deserve as much consideration as trademarks without any agreement that sets -- that both gives them the power and sets limits on the power and sets procedural rules for the exercise of that power. So we believe that that -- Let's not get into a substantive discussion of changing the substance of the policy, because we all know that's going to immediately bog down and be nonproductive. Most of the issues that people are concerned with, administrative and procedural issues, can be addressed in the context of developing a standard agreement. Finally, I want to mention the URS. It's our view that we think -- I don't want to say hypocrisy, but we see a great inconsistency of statements, certain IP interests saying you can't consider any substantive change in the URS, yet twice in the last two months -- on the dot net renewal and on relaxing vertical integration for existing gTLDs -- we have seen IP interests say that should be accompanied by imposing the URS on dot com and dot net and on the 110 million domains registered at them. We believe adding URS -- it may be a supplement to the UDRP, but it is a major substantive change in the structure, so we would suggest that a good time to discuss adding the URS to the UDRP would be at this meeting, the midyear meeting of ICANN, in 2016. That's five years from now, and I will tell you why. We won't see any new TLDs, gTLDs, added to the root until the beginning of 2013. The initial six months are going to be sunrise and all of that. We won't see URS even begin to be used until late 2013. We need at least two years of experience with it, and then an objective study. And then we can have that discussion after that study, which would be 2016. JONATHAN COHEN: Thank you very much. PHILIP CORWIN: Thank you very much. JONATHAN COHEN: I understand all these positions -- PHILIP CORWIN: My question is what do you think of that?
PHILIP CORWIN: Yes. Thanks again. I thought Kristine had an excellent formulation for how to generally decide what's substantive and what's procedural, which is, if it changes the policy, substantive. If it deals with the rules, procedural and administrative. And I think the type of thing I've been advocating, which is a standard agreement on the procedural and administrative side, there is no need to wait for experience with the new RPMs. It's a separate issue. Not only is it unrelated to however the new RPMs turn out, but there is, as I said, a need -- I remember looking at the application last year from the group in Amman, Jordan, and looking at the background of their preliminary panelists. Many of them had no prior experience with the UDRP. We're not just going to see new providers but new panelists. That's why we need something from ICANN to the providers that empowers them, that sets limits to their authority, and that provides enforcement mechanisms if they exceed their authority. Because, frankly, my members are concerned that new providers will try to gain market share by encouraging forum shopping by complainants by taking a more favorable approach in certain cases. I think this is good for WIPO, too. WIPO, clearly, as NAF defers to WIPO on the panelists guide, that is the starting point for consistency and uniformity in providing the UDRP and a contract should talk to WIPO's not preeminent but lead role in this whole area. The one other thing I would say is that, if anything is done going forward, what's been done so far by experts is great. But the suggestion that anything going forward should be just experts, that's not the ICANN way. We need experts involved. We need experts providing the base knowledge and experience. But it has to be open to the entire community. That's the way we should continue to operate. Thank you. JONATHAN COHEN: Thanks, Phil. That was good.
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 "Luck is the residue of design" -- Branch Rickey