RE: [bc-gnso] For review / approval by 28-Oct: BC Comment on Accreditation of UDRP providers
First let me begin by supporting the position started here. I also agree with Phils statement that this issue is separate from the issue of UDRP evaluation standards, etc. But, while separate issues, perhaps the issue of accreditation and/or standard UDRP Provider based contracts can be reviewed via the Registration Abuse Policies (RAP) Working Group recommendation of a UDRP review. Presently, there is a RAP Implementation team reviewing each of the RAP recommendations, one of which where the RAP WG reached unanimous consensus in review of UDRP. That recommendation requests for an Issues Report to initiate and launch the PDP process. The RAP IMP team will prioritize the recommendations for implementation and hopes to submit its efforts back to the GNSO council by close of October. At this time, we have not agreed on recommendation prioritization, but there does seem to be agreement that any UDRP Review PDP may require multiple PDPs, similar deployment to IRTP. Secondly, I attached an updated version of the BC Position Statement, per Marilyns comment to use a style template on a previous position statement. I took the liberty to update the template using the BCs latest logo and style created by Chris Chaplow. I did not have the soft files of the images, so this template could be improved some. Let me know your thoughts. I DID NOT include Marilyns edits in this version of the draft. Steve, can you ensure they are incorporated? Thank you. B Berry Cobb Infinity Portals LLC berrycobb@infinityportals.com http://infinityportals.com 720.839.5735 From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Marilyn Cade Sent: Thursday, October 14, 2010 8:10 PM To: Steve Delbianco; bc - GNSO list Subject: RE: [bc-gnso] For review / approval by 28-Oct: BC Comment on Accreditation of UDRP providers These comments are offered as a member of the BC, in my private capacity. First, I think that we need to continue to develop our BC comments in a positive tone, with a consistent 'look and feel', and with a view to leadership. Secondly, I provided some suggestions to the authors. However, I am not wedded to my language, but I am wedded to supporting that the BC's comments should show leadership. I know that was the intent, and hope that my suggestions might contribute to that approach. It is great to see such rapid turn around to get something out to members for consideration. Thanks, Phil, and Steve. I do have a question. Would you expect to freeze the document at some point, so that mmbers can respond to a final version? Marilyn Cade ________________________________________ From: sdelbianco@netchoice.org To: bc-gnso@icann.org Subject: [bc-gnso] For review / approval by 28-Oct: BC Comment on Accreditation of UDRP providers Date: Fri, 15 Oct 2010 02:03:00 +0000 This draft comment is being circulated today (14-Oct) so that BC members will have 14 days to review, revise, and consider approval before the ICANN deadline of 28-Oct-2010. The attached comment was drafted by Phil Corwin and was polished for submission by Mike Rodenbaugh. Phils original note is shown at the bottom of this email, and contains some contextual material that may be helpful in your consideration of this draft. This draft comment is in response to ICANNs proposal to recognize a new domain name dispute provider. For background on this proposal, see below, or at http://icann.org/en/public-comment/#acdr-proposal Explanation/Background: ICANN has received a proposal from the Arab Center for Domain Name Dispute Resolution (ACDR) to be recognized as one of the official dispute resolution providers under the UDRP. The proposal was submitted pursuant to the process specified at http://www.icann.org/en/dndr/udrp/provider-approval-process.htm. The ACDR is jointly established by the Arab Intellectual Property Mediation and Arbitration Society (AIPMAS) and the Arab Society for Intellectual Property (ASIP), with headquarters in Amman, Jordan and additional offices in other Arab Countries. Both the AIPMAS (established in 1987) and ASIP promote the activities of the Arab Center of Mediation and Arbitration, established in 2003, active in resolving conflicts related to intellectual property through international arbitrators. If approved, the ACDR would be the first Approved UDRP Dispute Resolution Service Provider headquartered in an Arab state. At its 5 August 2010 meeting, the Board approved staffs recommendation to publish the ACDR proposal for a public comment for a period of not less than 30 days. Upon completion of the public comment period, ICANN staff will analyze the comments received and evaluate further recommendations to the Board on proceeding with the ACDR proposal. The proposal and relevant annexures are at: ACDR Proposal [PDF, 156 KB] Annex 1 ACDR Initial List of Panelists [PDF, 176 KB] Annex 2 ACDR Screening Process [PDF, 8 KB] Annex 3 ACDR Supplemental Rules [PDF, 100 KB] ----- Forwarded Message From: Phil Corwin <pcorwin@butera-andrews.com> Date: Thu, 14 Oct 2010 14:54:47 +0000 To: Marilyn Cade <marilynscade@hotmail.com>, bcprivate <bcprivate@bizconst.org> Thanks to you, Steve, Sarah, Ron, Mikey, Chris and everyone else who put in place and participated in Tuesday's meeting of the Business Constituency. It was very worthwhile and hopefully will be an annual event. During the policy portion of the meeting I noted that there is a pending request for comment regarding the application of the Arab Center for Domain Name Dispute Resolution (ACDR) to become a certified UDRP arbitration provider. ACDR is located in Amman, Jordan; The comment period closes on October 28th. Steve invited me to provide further details, and this e-mail takes up that offer. I don't yet have an ICA comment letter to share that has been approved by the ICA Board, but I can provide this background -- I noted that the ICA intended to oppose approval of this application at this time on the grounds that no new UDRP providers should be accredited until ICANN implements a standard contract with all accredited providers or finds some other mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities. Let me make clear that ICA's opposition will not be based in any way on the fact that this particular applicant is "Arab" and is located in the developing world. There were recent reports that an Indian organization is contemplating a similar application, and it may yet do so -- and ICA would take the same position in regard to them -- as we would in regard to any applicant from the US, EU, or any other part of the developed world. Nor are we necessarily alleging that ACDR or its proposed panelists are lacking adequate professional credentials (we are still reviewing all of their supporting documents). That said, future UDRP providers are likely to be located in jurisdictions that have different local legal cultures, and this make it even more important to have a standardized governing document to keep the "uniform" in UDRP. The problem is this -- it makes absolutely no sense to require that domains be registered or renewed via ICANN-accredited registrars who are under a standard contract (the RAA) but then provide that you can have your domain transferred away through a process administered by an organization that has been granted this power by ICANN -- yet is under no contract that defines its practices and procedures, is not subject to any regular or standardized review by ICANN, and for which ICANN's only disciplinary tool is accreditation revocation (so extreme a sanction that it is unlikely to ever be used). I would think that everyone in the Business Constituency would understand the importance of a contractual relationship that defines and constrains this grant of power, and provides flexible and effective enforcement mechanisms, because that delegated power can extinguish substantial monetary investment and goodwill in a domain. Granting this kind of power absent any restraints is not an accountable practice. As I noted yesterday, this is not just a domain investor/developer issue. We appear to be transitioning from a DNS that featured an effective duopoly of UDRP providers (WIPO and NAF) and in which all significant gTLDs were based in the developed world -- to one in which the majority of gTLDs may well be headquartered in nontraditional jurisdictions. Business interests may well be investing substantial amounts in these new gTLDs, for both defensive and new branding purposes. In this type of environment it is even more important that a proliferating cast of UDRP providers be subject to uniform and enforceable responsibilities, as that is the only means of assuring that UDRP decisions are consistent within and among UDRP providers, and that the UDRP remains an expedited and lower cost means of addressing cybersquatting. Let me conclude by noting that this issue of whether UDRP providers should be under standard contract with ICANN is almost entirely separable from the question of whether the UDRP evaluation standards for determining the existence of cybersquatting should be reformed. That latter issue is a more complicated matter, and ICA recently suggested to ICANN that it should undertake an expert and impartial study contrasting trends in Internet trademark law decisions in major jurisdictions with trends in UDRP practice in order to provide a common foundation of information to inform any broader UDRP reform effort. There is no need to debate the substantive elements of the UDRP in order to address the fundamental issue of whether UDRP providers should be under standardized contract. I realize that it is difficult for the BC to reach consensus or act quickly. But I would ask fellow members to start thinking about this issue of whether you want expanded ranks of UDRP providers to be able to decide disputes involving your domains registered in hundreds of new gTLDs located in multiple national jurisdictions without being under contract in that role. If the BC is unable to oppose this particular application I would at least hope we could achieve a consensus statement expressing concern about the lack of a contractual relationship between these providers and ICANN. Thanks to my fellow members for taking this under advisement -- and thanks again to all who contributed to yesterday's event. Regards to all, Philip Philip S. Corwin Partner Butera & Andrews Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell)
Berry: Thanks for your support of the overall position that UDRP providers should be under standard contract with ICANN. The RAPWG's Initial Report statement on this is as follows: The RAPWG recommends the initiation of a Policy Development Process by requesting an Issues Report to investigate the current state of the UDRP, and consider revisions to address cybersquatting if appropriate. This effort should consider: • How the UDRP has addressed the problem of cybersquatting to date, and any insufficiencies/inequalities associated with the process. • Whether the definition of cybersquatting inherent within the existing UDRP language needs to be reviewed or updated. Clearly, the second point that the Issues Report would be asked to address -- the definition of cybersquatting -- is separate from the question of whether there should be a standard UDRP provider contract and what matters it should address (although I believe that some concerns that both complainants and have registrants have with administration of the current UDRP could be addressed contractually). As we are both participating in the RAPIMP discussions I concur with your observation that any UDRP PDP may require multiple PDPs; so far as prioritization, my view would be that establishing a standard contract should come first as that is the only means of assuring consistent implementation of any other UDRP reforms. Taking that separate PDPs/contract first approach would also be consistent with the last paragraph of the draft BC position, which states: In closing, we note that this issue of whether UDRP providers should be under standard contract with ICANN is almost entirely separable from the question of whether the UDRP evaluation standards for determining the existence of cybersquatting should be reformed. There is no need to debate the substantive elements of the UDRP in order to address the fundamental issue of whether UDRP providers should be under standardized contract. So, in conclusion, I would be fine with referencing the implementation of the RAPWG recommendation on UDRP reform so long as it is noted that establishment of a standard contract should be first priority. developing that contract will be a major task in itself, and mixing it with a debate on the elements of cybersquatting that must be proved to prevail in a UDRP filing will needlessly complicate the discussion. Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey ________________________________________ From: owner-bc-gnso@icann.org [owner-bc-gnso@icann.org] on behalf of berrycobb@infinityportals.com [berrycobb@infinityportals.com] Sent: Sunday, October 17, 2010 9:06 PM To: 'bc - GNSO list' Subject: RE: [bc-gnso] For review / approval by 28-Oct: BC Comment on Accreditation of UDRP providers First let me begin by supporting the position started here. I also agree with Phil’s statement that this issue is separate from the issue of UDRP evaluation standards, etc. But, while separate issues, perhaps the issue of accreditation and/or standard UDRP Provider based contracts can be reviewed via the Registration Abuse Policies (RAP) Working Group recommendation of a UDRP review. Presently, there is a RAP Implementation team reviewing each of the RAP recommendations, one of which where the RAP WG reached unanimous consensus in review of UDRP. That recommendation requests for an Issues Report to initiate and launch the PDP process. The RAP IMP team will prioritize the recommendations for implementation and hopes to submit its efforts back to the GNSO council by close of October. At this time, we have not agreed on recommendation prioritization, but there does seem to be agreement that any UDRP Review PDP may require multiple PDPs, similar deployment to IRTP. Secondly, I attached an updated version of the BC Position Statement, per Marilyn’s comment to use a style template on a previous position statement. I took the liberty to update the template using the BC’s latest logo and style created by Chris Chaplow. I did not have the soft files of the images, so this template could be improved some. Let me know your thoughts. I DID NOT include Marilyn’s edits in this version of the draft. Steve, can you ensure they are incorporated? Thank you. B Berry Cobb Infinity Portals LLC berrycobb@infinityportals.com http://infinityportals.com 720.839.5735 From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Marilyn Cade Sent: Thursday, October 14, 2010 8:10 PM To: Steve Delbianco; bc - GNSO list Subject: RE: [bc-gnso] For review / approval by 28-Oct: BC Comment on Accreditation of UDRP providers These comments are offered as a member of the BC, in my private capacity. First, I think that we need to continue to develop our BC comments in a positive tone, with a consistent 'look and feel', and with a view to leadership. Secondly, I provided some suggestions to the authors. However, I am not wedded to my language, but I am wedded to supporting that the BC's comments should show leadership. I know that was the intent, and hope that my suggestions might contribute to that approach. It is great to see such rapid turn around to get something out to members for consideration. Thanks, Phil, and Steve. I do have a question. Would you expect to freeze the document at some point, so that mmbers can respond to a final version? Marilyn Cade ________________________________________ From: sdelbianco@netchoice.org To: bc-gnso@icann.org Subject: [bc-gnso] For review / approval by 28-Oct: BC Comment on Accreditation of UDRP providers Date: Fri, 15 Oct 2010 02:03:00 +0000 This draft comment is being circulated today (14-Oct) so that BC members will have 14 days to review, revise, and consider approval before the ICANN deadline of 28-Oct-2010. The attached comment was drafted by Phil Corwin and was polished for submission by Mike Rodenbaugh. Phil’s original note is shown at the bottom of this email, and contains some contextual material that may be helpful in your consideration of this draft. This draft comment is in response to ICANN’s proposal to recognize a new domain name dispute provider. For background on this proposal, see below, or at http://icann.org/en/public-comment/#acdr-proposal Explanation/Background: ICANN has received a proposal from the Arab Center for Domain Name Dispute Resolution (ACDR) to be recognized as one of the official dispute resolution providers under the UDRP. The proposal was submitted pursuant to the process specified at http://www.icann.org/en/dndr/udrp/provider-approval-process.htm. The ACDR is jointly established by the Arab Intellectual Property Mediation and Arbitration Society (AIPMAS) and the Arab Society for Intellectual Property (ASIP), with headquarters in Amman, Jordan and additional offices in other Arab Countries. Both the AIPMAS (established in 1987) and ASIP promote the activities of the Arab Center of Mediation and Arbitration, established in 2003, active in resolving conflicts related to intellectual property through international arbitrators. If approved, the ACDR would be the first Approved UDRP Dispute Resolution Service Provider headquartered in an Arab state. At its 5 August 2010 meeting, the Board approved staff’s recommendation to publish the ACDR proposal for a public comment for a period of not less than 30 days. Upon completion of the public comment period, ICANN staff will analyze the comments received and evaluate further recommendations to the Board on proceeding with the ACDR proposal. The proposal and relevant annexures are at: ACDR Proposal [PDF, 156 KB] Annex 1 – ACDR Initial List of Panelists [PDF, 176 KB] Annex 2 – ACDR Screening Process [PDF, 8 KB] Annex 3 – ACDR Supplemental Rules [PDF, 100 KB] ----- Forwarded Message From: Phil Corwin <pcorwin@butera-andrews.com> Date: Thu, 14 Oct 2010 14:54:47 +0000 To: Marilyn Cade <marilynscade@hotmail.com>, bcprivate <bcprivate@bizconst.org> Thanks to you, Steve, Sarah, Ron, Mikey, Chris and everyone else who put in place and participated in Tuesday's meeting of the Business Constituency. It was very worthwhile and hopefully will be an annual event. During the policy portion of the meeting I noted that there is a pending request for comment regarding the application of the Arab Center for Domain Name Dispute Resolution (ACDR) to become a certified UDRP arbitration provider. ACDR is located in Amman, Jordan; The comment period closes on October 28th. Steve invited me to provide further details, and this e-mail takes up that offer. I don't yet have an ICA comment letter to share that has been approved by the ICA Board, but I can provide this background -- I noted that the ICA intended to oppose approval of this application at this time on the grounds that no new UDRP providers should be accredited until ICANN implements a standard contract with all accredited providers or finds some other mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities. Let me make clear that ICA's opposition will not be based in any way on the fact that this particular applicant is "Arab" and is located in the developing world. There were recent reports that an Indian organization is contemplating a similar application, and it may yet do so -- and ICA would take the same position in regard to them -- as we would in regard to any applicant from the US, EU, or any other part of the developed world. Nor are we necessarily alleging that ACDR or its proposed panelists are lacking adequate professional credentials (we are still reviewing all of their supporting documents). That said, future UDRP providers are likely to be located in jurisdictions that have different local legal cultures, and this make it even more important to have a standardized governing document to keep the "uniform" in UDRP. The problem is this -- it makes absolutely no sense to require that domains be registered or renewed via ICANN-accredited registrars who are under a standard contract (the RAA) but then provide that you can have your domain transferred away through a process administered by an organization that has been granted this power by ICANN -- yet is under no contract that defines its practices and procedures, is not subject to any regular or standardized review by ICANN, and for which ICANN's only disciplinary tool is accreditation revocation (so extreme a sanction that it is unlikely to ever be used). I would think that everyone in the Business Constituency would understand the importance of a contractual relationship that defines and constrains this grant of power, and provides flexible and effective enforcement mechanisms, because that delegated power can extinguish substantial monetary investment and goodwill in a domain. Granting this kind of power absent any restraints is not an accountable practice. As I noted yesterday, this is not just a domain investor/developer issue. We appear to be transitioning from a DNS that featured an effective duopoly of UDRP providers (WIPO and NAF) and in which all significant gTLDs were based in the developed world -- to one in which the majority of gTLDs may well be headquartered in nontraditional jurisdictions. Business interests may well be investing substantial amounts in these new gTLDs, for both defensive and new branding purposes. In this type of environment it is even more important that a proliferating cast of UDRP providers be subject to uniform and enforceable responsibilities, as that is the only means of assuring that UDRP decisions are consistent within and among UDRP providers, and that the UDRP remains an expedited and lower cost means of addressing cybersquatting. Let me conclude by noting that this issue of whether UDRP providers should be under standard contract with ICANN is almost entirely separable from the question of whether the UDRP evaluation standards for determining the existence of cybersquatting should be reformed. That latter issue is a more complicated matter, and ICA recently suggested to ICANN that it should undertake an expert and impartial study contrasting trends in Internet trademark law decisions in major jurisdictions with trends in UDRP practice in order to provide a common foundation of information to inform any broader UDRP reform effort. There is no need to debate the substantive elements of the UDRP in order to address the fundamental issue of whether UDRP providers should be under standardized contract. I realize that it is difficult for the BC to reach consensus or act quickly. But I would ask fellow members to start thinking about this issue of whether you want expanded ranks of UDRP providers to be able to decide disputes involving your domains registered in hundreds of new gTLDs located in multiple national jurisdictions without being under contract in that role. If the BC is unable to oppose this particular application I would at least hope we could achieve a consensus statement expressing concern about the lack of a contractual relationship between these providers and ICANN. Thanks to my fellow members for taking this under advisement -- and thanks again to all who contributed to yesterday's event. Regards to all, Philip Philip S. Corwin Partner Butera & Andrews Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell)
participants (2)
-
berrycobb＠infinityportals.com -
Phil Corwin