Interborder agrees with George's improved draft. cheers/Rick Rick Anderson EVP, InterBorder Holdings Ltd email: randerson@interborder.ca cell: (403) 830-1798 office: (403) 750-5535 ----- Original Message ----- From: owner-bc-gnso@icann.org <owner-bc-gnso@icann.org> To: 'mike@haven2.com' <mike@haven2.com>; 'icann@leap.com' <icann@leap.com> Cc: 'bc-gnso@icann.org' <bc-gnso@icann.org> Sent: Tue Jun 23 18:43:48 2009 Subject: Re: [bc-gnso] BC statement on IRT ICA supports George's alternative and dissents on the original text. Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell "Luck is the residue of design." -- Branch Rickey ----- Original Message ----- From: owner-bc-gnso@icann.org <owner-bc-gnso@icann.org> To: George Kirikos <icann@leap.com> Cc: BC gnso <bc-gnso@icann.org> Sent: Tue Jun 23 20:30:43 2009 Subject: Re: [bc-gnso] BC statement on IRT i stand with George on this one. mikey On Jun 23, 2009, at 7:24 PM, George Kirikos wrote:
Hello,
We do not support that proposed BC statement on the IRT. We propose an alternative and balanced statement as follows:
----- start proposed statement ------ "The BC appreciates the effort of the IP constituency's work in creating a proposal that would protect trademark holders interests. However, much work remains to be done to ensure that the needs of trademark holders are balanced against the needs of domain registrants for certainty, predictability and due process. The BC looks forward to working with the IP constituency, and other constituencies within the GNSO on an improved version of the IRT's report, one that can achieve consensus support of all stakeholders." ----- end proposed statement ------
As we have stated previously, we have grave concerns about the IRT, and the "answers" provided by the members of the IRT team have been spurious. To give just two concrete examples (there are many more if one reads our prior comments submitted in the official comment periods):
a) No good reason has been provided as to why the IRT proposes that *all* domain names, irregardless of age, should be subject to the URS, especially given that markholders ultimately would want the URS to apply to legacy TLDs such as com/net/org. The URS is an extraordinary procedure that would take down a domain name with short notice (so short that a registrant on vacation may not receive actual notice of a complaint). Such an extraordinary procedure should be targeted only towards the most abusive domain names, one where "time is of the essence." Time is not of the essence if a domain name is 10 years old! The onus should be on markholders to not delay in bringing complaints if there is truly a matter that is "urgent" and requires the URS. We proposed that the URS either apply only to domains younger than a certain age (e.g. 6 months), or that the time to respond to complaints be a function of the age of the domain (e.g. 15 days + the age of the domain in months). Businesses and consumers require certainty and due process, and a system like the URS as proposed that would threaten their legitimate domain name, one that they've owned for years, denies them both certainty and due process.
b) No good reason has been provided as to why the IRT proposes to limit notification to registrants to only 2 emails and 1 letter by post for the URS. Email is unreliable given the amount of spam that exists, and international mail might not be received in time to respond to a complaint, given the slow delivery times of the international postal system. We specifically pointed to opt-in fax as a highly reliable system to notify registrants of complaints, and the IRT provides excuses that leave objective people incredulous. Footnote 30 of the report stated:
"The IRT decided that such requirements would add significant complexity and cost to the system due to time zones and national and local laws regarding faxing and calling."
This is simply astonishing for the IRT to say, given that (a) the faxes are 100% opt-in, and (b) the UDRP has been providing fax notification for over 10 years without issues. The cost to send a 1-page fax notification of a complaint (using email to fax gateways) is on the order of 10 cents, far below the postal delivery stamp fees.
A legitimate URS complaint by a markholder will not be impacted if the registrant receives proper and timely notification (actual notice) by fax. The URS was supposedly intended for "clear cut" cases, and notification shouldn't impact the registrant's ability to defend a "clear cut" case of abuse.
However, illegitimate and frivolous URS complaints with weak claims that hope to win by default due to lack of registrant notification will greatly benefit by lack of fax notification, lack of actual notice. A legitimate registrant will strongly defend their domain name and is hurt by lack of the ability to respond and prepare a defence.
The only logical conclusion is that the IRT has intentionally acted to put the rights of illegitimate and frivolous URS complainants with weak claims ahead of legitimate domain registrants with strong defences, by putting up spurious obstacles to the domain registrants receiving actual notice and due process. This is no surprise given the IP's pro-complainant dominance of the IRT process.
While the IRT members posture in public that their report was a "compromise" I hope it is clear from just the above two cases (and there are more) that it truly was not any compromise, but was an extreme and unbalanced report.
Legitimate domain registrants like my company and others in the BC and other constituencies are prepared to work with the IP constituency to come up with a balanced solution within the GNSO process. But, until such time, the IRT report should continue to draw skepticism within the ICANN community, and be rejected.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
P.S. One can read our early substantial comments on the IRT, indeed with novel approaches (such as the concept of easements), that were ignored by the IRT:
http://forum.icann.org/lists/irt-draft-report/msg00000.html http://forum.icann.org/lists/irt-draft-report/msg00015.html http://forum.icann.org/lists/irt-draft-report/msg00016.html http://forum.icann.org/lists/irt-final-report/msg00000.html
- - - - - - - - - phone 651-647-6109 fax 866-280-2356 web www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.) This e-mail message and any attachments may contain confidential and/or privileged information intended only for the addressee. In the event this e-mail is sent to you in error, sender and sender’s company do not waive confidentiality or privilege, and waiver may not be assumed. Any dissemination, distribution or copying of, or action taken in reliance on, the contents of this e-mail by anyone other than the intended recipient is prohibited. If you have been sent this e-mail in error, please destroy all copies and notify sender at the above e-mail address. Computer viruses can be transmitted by e-mail. You should check this e-mail message and any attachments for viruses. Sender and sender’s company accept no liability for any damage caused by any virus transmitted by this e-mail. Like other forms of communication, e-mail communications may be vulnerable to interception by unauthorized parties. If you do not wish to communicate by e-mail, please notify sender. In the absence of such notification, your consent is assumed. Sender will not take any additional security measures (such as encryption) unless specifically requested.
I thought the original brief statement reflected the discussion yesterday in the BC and the key is for members to submit their own comments to the consultation. My sense is the statement should be very brief so that members can express their own perspectives directly to the consultation process. To help reach a statement we can all support, I propose the following: "The BC recognizes the work and efforts of all those who participated in the IRT. The BC believes that this report is productive step forward in addressing several issues with respect to new gTLDs. The BC urges its members to post their individual comments on the substance of the report at Public comment space http://www.icann.org/en/announcements/announcement-4-29may09-en.htm" Regards, Ayesha -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Rick Anderson Sent: mercredi 24 juin 2009 03:01 To: bc-gnso@icann.org Subject: [bc-gnso] BC statement on IRT Interborder agrees with George's improved draft. cheers/Rick Rick Anderson EVP, InterBorder Holdings Ltd email: randerson@interborder.ca cell: (403) 830-1798 office: (403) 750-5535 ----- Original Message ----- From: owner-bc-gnso@icann.org <owner-bc-gnso@icann.org> To: 'mike@haven2.com' <mike@haven2.com>; 'icann@leap.com' <icann@leap.com> Cc: 'bc-gnso@icann.org' <bc-gnso@icann.org> Sent: Tue Jun 23 18:43:48 2009 Subject: Re: [bc-gnso] BC statement on IRT ICA supports George's alternative and dissents on the original text. Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell "Luck is the residue of design." -- Branch Rickey ----- Original Message ----- From: owner-bc-gnso@icann.org <owner-bc-gnso@icann.org> To: George Kirikos <icann@leap.com> Cc: BC gnso <bc-gnso@icann.org> Sent: Tue Jun 23 20:30:43 2009 Subject: Re: [bc-gnso] BC statement on IRT i stand with George on this one. mikey On Jun 23, 2009, at 7:24 PM, George Kirikos wrote:
Hello,
We do not support that proposed BC statement on the IRT. We propose an alternative and balanced statement as follows:
----- start proposed statement ------ "The BC appreciates the effort of the IP constituency's work in creating a proposal that would protect trademark holders interests. However, much work remains to be done to ensure that the needs of trademark holders are balanced against the needs of domain registrants for certainty, predictability and due process. The BC looks forward to working with the IP constituency, and other constituencies within the GNSO on an improved version of the IRT's report, one that can achieve consensus support of all stakeholders." ----- end proposed statement ------
As we have stated previously, we have grave concerns about the IRT, and the "answers" provided by the members of the IRT team have been spurious. To give just two concrete examples (there are many more if one reads our prior comments submitted in the official comment periods):
a) No good reason has been provided as to why the IRT proposes that *all* domain names, irregardless of age, should be subject to the URS, especially given that markholders ultimately would want the URS to apply to legacy TLDs such as com/net/org. The URS is an extraordinary procedure that would take down a domain name with short notice (so short that a registrant on vacation may not receive actual notice of a complaint). Such an extraordinary procedure should be targeted only towards the most abusive domain names, one where "time is of the essence." Time is not of the essence if a domain name is 10 years old! The onus should be on markholders to not delay in bringing complaints if there is truly a matter that is "urgent" and requires the URS. We proposed that the URS either apply only to domains younger than a certain age (e.g. 6 months), or that the time to respond to complaints be a function of the age of the domain (e.g. 15 days + the age of the domain in months). Businesses and consumers require certainty and due process, and a system like the URS as proposed that would threaten their legitimate domain name, one that they've owned for years, denies them both certainty and due process.
b) No good reason has been provided as to why the IRT proposes to limit notification to registrants to only 2 emails and 1 letter by post for the URS. Email is unreliable given the amount of spam that exists, and international mail might not be received in time to respond to a complaint, given the slow delivery times of the international postal system. We specifically pointed to opt-in fax as a highly reliable system to notify registrants of complaints, and the IRT provides excuses that leave objective people incredulous. Footnote 30 of the report stated:
"The IRT decided that such requirements would add significant complexity and cost to the system due to time zones and national and local laws regarding faxing and calling."
This is simply astonishing for the IRT to say, given that (a) the faxes are 100% opt-in, and (b) the UDRP has been providing fax notification for over 10 years without issues. The cost to send a 1-page fax notification of a complaint (using email to fax gateways) is on the order of 10 cents, far below the postal delivery stamp fees.
A legitimate URS complaint by a markholder will not be impacted if the registrant receives proper and timely notification (actual notice) by fax. The URS was supposedly intended for "clear cut" cases, and notification shouldn't impact the registrant's ability to defend a "clear cut" case of abuse.
However, illegitimate and frivolous URS complaints with weak claims that hope to win by default due to lack of registrant notification will greatly benefit by lack of fax notification, lack of actual notice. A legitimate registrant will strongly defend their domain name and is hurt by lack of the ability to respond and prepare a defence.
The only logical conclusion is that the IRT has intentionally acted to put the rights of illegitimate and frivolous URS complainants with weak claims ahead of legitimate domain registrants with strong defences, by putting up spurious obstacles to the domain registrants receiving actual notice and due process. This is no surprise given the IP's pro-complainant dominance of the IRT process.
While the IRT members posture in public that their report was a "compromise" I hope it is clear from just the above two cases (and there are more) that it truly was not any compromise, but was an extreme and unbalanced report.
Legitimate domain registrants like my company and others in the BC and other constituencies are prepared to work with the IP constituency to come up with a balanced solution within the GNSO process. But, until such time, the IRT report should continue to draw skepticism within the ICANN community, and be rejected.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
P.S. One can read our early substantial comments on the IRT, indeed with novel approaches (such as the concept of easements), that were ignored by the IRT:
http://forum.icann.org/lists/irt-draft-report/msg00000.html http://forum.icann.org/lists/irt-draft-report/msg00015.html http://forum.icann.org/lists/irt-draft-report/msg00016.html http://forum.icann.org/lists/irt-final-report/msg00000.html
- - - - - - - - - phone 651-647-6109 fax 866-280-2356 web www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.) This e-mail message and any attachments may contain confidential and/or privileged information intended only for the addressee. In the event this e-mail is sent to you in error, sender and sender's company do not waive confidentiality or privilege, and waiver may not be assumed. Any dissemination, distribution or copying of, or action taken in reliance on, the contents of this e-mail by anyone other than the intended recipient is prohibited. If you have been sent this e-mail in error, please destroy all copies and notify sender at the above e-mail address. Computer viruses can be transmitted by e-mail. You should check this e-mail message and any attachments for viruses. Sender and sender's company accept no liability for any damage caused by any virus transmitted by this e-mail. Like other forms of communication, e-mail communications may be vulnerable to interception by unauthorized parties. If you do not wish to communicate by e-mail, please notify sender. In the absence of such notification, your consent is assumed. Sender will not take any additional security measures (such as encryption) unless specifically requested.
NetChoice would support Ayesha's version of the BC consensus: that the IRT report is a positive step forward. Specific concerns (e.g., due process) ought to be submitted individually, as George has done so elegantly. Others agreeing with George can support/expand on that in their own individual submissions. --Steve On 6/24/09 11:28 AM, "Ayesha Hassan" <ayesha.hassan@iccwbo.org> wrote:
I thought the original brief statement reflected the discussion yesterday in the BC and the key is for members to submit their own comments to the consultation. My sense is the statement should be very brief so that members can express their own perspectives directly to the consultation process.
To help reach a statement we can all support, I propose the following:
"The BC recognizes the work and efforts of all those who participated in the IRT. The BC believes that this report is productive step forward in addressing several issues with respect to new gTLDs.
The BC urges its members to post their individual comments on the substance of the report at Public comment space http://www.icann.org/en/announcements/announcement-4-29may09-en.htm"
Regards, Ayesha
On Jun 23, 2009, at 7:24 PM, George Kirikos wrote:
Hello,
We do not support that proposed BC statement on the IRT. We propose an alternative and balanced statement as follows:
----- start proposed statement ------ "The BC appreciates the effort of the IP constituency's work in creating a proposal that would protect trademark holders interests. However, much work remains to be done to ensure that the needs of trademark holders are balanced against the needs of domain registrants for certainty, predictability and due process. The BC looks forward to working with the IP constituency, and other constituencies within the GNSO on an improved version of the IRT's report, one that can achieve consensus support of all stakeholders." ----- end proposed statement ------
As we have stated previously, we have grave concerns about the IRT, and the "answers" provided by the members of the IRT team have been spurious. To give just two concrete examples (there are many more if one reads our prior comments submitted in the official comment periods):
a) No good reason has been provided as to why the IRT proposes that *all* domain names, irregardless of age, should be subject to the URS, especially given that markholders ultimately would want the URS to apply to legacy TLDs such as com/net/org. The URS is an extraordinary procedure that would take down a domain name with short notice (so short that a registrant on vacation may not receive actual notice of a complaint). Such an extraordinary procedure should be targeted only towards the most abusive domain names, one where "time is of the essence." Time is not of the essence if a domain name is 10 years old! The onus should be on markholders to not delay in bringing complaints if there is truly a matter that is "urgent" and requires the URS. We proposed that the URS either apply only to domains younger than a certain age (e.g. 6 months), or that the time to respond to complaints be a function of the age of the domain (e.g. 15 days + the age of the domain in months). Businesses and consumers require certainty and due process, and a system like the URS as proposed that would threaten their legitimate domain name, one that they've owned for years, denies them both certainty and due process.
b) No good reason has been provided as to why the IRT proposes to limit notification to registrants to only 2 emails and 1 letter by post for the URS. Email is unreliable given the amount of spam that exists, and international mail might not be received in time to respond to a complaint, given the slow delivery times of the international postal system. We specifically pointed to opt-in fax as a highly reliable system to notify registrants of complaints, and the IRT provides excuses that leave objective people incredulous. Footnote 30 of the report stated:
"The IRT decided that such requirements would add significant complexity and cost to the system due to time zones and national and local laws regarding faxing and calling."
This is simply astonishing for the IRT to say, given that (a) the faxes are 100% opt-in, and (b) the UDRP has been providing fax notification for over 10 years without issues. The cost to send a 1-page fax notification of a complaint (using email to fax gateways) is on the order of 10 cents, far below the postal delivery stamp fees.
A legitimate URS complaint by a markholder will not be impacted if the registrant receives proper and timely notification (actual notice) by fax. The URS was supposedly intended for "clear cut" cases, and notification shouldn't impact the registrant's ability to defend a "clear cut" case of abuse.
However, illegitimate and frivolous URS complaints with weak claims that hope to win by default due to lack of registrant notification will greatly benefit by lack of fax notification, lack of actual notice. A legitimate registrant will strongly defend their domain name and is hurt by lack of the ability to respond and prepare a defence.
The only logical conclusion is that the IRT has intentionally acted to put the rights of illegitimate and frivolous URS complainants with weak claims ahead of legitimate domain registrants with strong defences, by putting up spurious obstacles to the domain registrants receiving actual notice and due process. This is no surprise given the IP's pro-complainant dominance of the IRT process.
While the IRT members posture in public that their report was a "compromise" I hope it is clear from just the above two cases (and there are more) that it truly was not any compromise, but was an extreme and unbalanced report.
Legitimate domain registrants like my company and others in the BC and other constituencies are prepared to work with the IP constituency to come up with a balanced solution within the GNSO process. But, until such time, the IRT report should continue to draw skepticism within the ICANN community, and be rejected.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
P.S. One can read our early substantial comments on the IRT, indeed with novel approaches (such as the concept of easements), that were ignored by the IRT:
http://forum.icann.org/lists/irt-draft-report/msg00000.html http://forum.icann.org/lists/irt-draft-report/msg00015.html http://forum.icann.org/lists/irt-draft-report/msg00016.html http://forum.icann.org/lists/irt-final-report/msg00000.html
From Marilyn Cade, ICT Strategies, mCADE llc I support Ayesha's proposal. It offers a compromise. I also would note that the IRT's work is not just about trademark protection, or 'interests', but also about limiting consumer confusion, and addressing other kinds of issues that were identified during the public comment process involving the collision of trademarks and domain names. I like that the proposed language Ayesha offers is high level enough that it shows appreciation but does not lock in those members who wish to say more, or less, about the IRT recommendations. Ayesha's proposal "The BC recognizes the work and efforts of all those who participated in
the IRT. The BC believes that this report is productive step forward in addressing several issues with respect to new gTLDs.
The BC urges its members to post their individual comments on the substance of the report at Public comment space http://www.icann.org/en/announcements/announcement-4-29may09-en.htm"
On a personal note, to those from the BC who worked ON the IRT, I appreciate your accepting this 'assignment', your dedication and commitment of your time/and intellectual expertise, and most recently, this week, that you are gracious and generous with your time in briefing all groups on the IRT's report during the ICANN meeting, often giving up being in meetings on other topics where you undoubtedly needed to be, from your business interests. I realize that you are also now faced with even more time in the public sessions. This commitment is quite considerable, and still before you. I hope you will accept my expression of gratitude, and if you care to, feel free to take at least this paragraph and share it with your IRT colleagues.
Hello, On Tue, Jun 23, 2009 at 9:28 PM, HASSAN Ayesha wrote:
To help reach a statement we can all support, I propose the following:
"The BC recognizes the work and efforts of all those who participated in the IRT. The BC believes that this report is productive step forward in addressing several issues with respect to new gTLDs.
The BC urges its members to post their individual comments on the substance of the report at Public comment space http://www.icann.org/en/announcements/announcement-4-29may09-en.htm"
With my 3rd and final post of the day (until 2 hours from now when things reset in my timezone!), I'd like to say that I oppose the above language, and reaffirm my support for the balanced language I proposed. There are folks like myself who are disgusted by the entire IRT process, and have said so in plain language that no one can misinterpret ("an abomination, wholly unbalanced, etc."). Many others feel the exact same way in other constituencies (NCUC, ALAC, the public, registrants, etc.). While IRT members put on a brave face saying "we simply do not understand the report", that's silly. We fully understand the report, and its implications. We know the IRT could have done better, but intentionally took a hard line. These "compromises" that they speak of do not pass the sniff test, when they make plainly false arguments in attempts justify the lack of due process for legitimate registrants. Tell me what specific laws a URS provider is breaking when I invite them, via an opt-in fax, to notify me of a complaint via fax? How is a legitimate URS complainant hurt by giving the other side actual notice of a complaint? The IRT team has no good response. Instead of dancing around the issues and scheming on their private mailing lists and in their private meetings, they should spend more time listening and more time re-drafting and bringing in more participants in a public process. The IRT was not a "productive step forward." One should be embarrassed by their entire process, and their conclusions. However, if one re-reads my proposed statement: http://forum.icann.org/lists/bc-gnso/msg00153.html it (1) expresses appreciation, (2) expressly notes that the IP constituency led the entire process, (3) notes that more works needs to be done to reflect views of domain registrants and other stakeholders besides the IP constituency, (4) notes the proper role of the GNSO in policy development, and (5) does so with diplomatic language that doesn't express the true disgust many of us actually feel. Ayesha's statement, though, only captures elements (1) and (5) of the above, while injecting the view that it's a "productive step forward" that many of us disagree with. If the BC is to express the views of BUSINESS STAKEHOLDERS, and not just the IP holders, and is to garner the respect of other constituencies, ICANN participants and the community, as not being simply a clone of the IP constituency, our statement cannot simply give tacit approval of the IRT report as Ayesha's statement would be perceived. It would undermine the legitimacy of our constituency if we did not expressly note that more works needs to be done, and that it should be done through the GNSO. A terrible precedent would be set which would undermine the entire policymaking role of the GNSO if individual constituencies like the IP Consituency directly set policy in secret. How would we react if the Registry Constituency or the Registrar's Constituency made policy directly to the ICANN Board, circumventing the GNSO? In conclusion, I cannot and do not support Ayesha's proposed statement. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
I think it is important for BC members, both here in Sydney and those not, to take a step back and reflect on what the IRT is and what it is tasked to do. To say it is a shame that all of our members are not here to be able to share in the on-going discussion and dialogue with the IRT work team and the larger ICANN community on this topic is an understatement. I can appreciate that, without the larger context which we here in Sydney can gain a better understand of (as a result of the "local" discourse), some members might view the IRT report as being considerably too little or too much vis-à-vis their expectations. However, at the B.C. meeting yesterday it was agreed by those present and on the call in line that, as it would be futile to try to reach constituency consensus on this topic, it would be better to simply note that the BC is pleased that "this work has been undertaken" and ask each member to make their individual comments in the public comments space. Clearly, IP issues MUST be addressed AND the pressures to roll out new gTLDs is not decreasing (ergo the IRT -- in some watered down form, I suspect -- WILL be adopted and included in the 3rd DAG). Therefore, RNA Partners supports Ayesha's recommendation and urges all members to note their corporate positions on the public comment list. Respectfully, RA Ronald N. Andruff RNA Partners, Inc. 220 Fifth Avenue, 20th floor New York, New York 10001 www.rnapartners.com V: +1 212 481 2820 x 11 F: +1 212 481 2859 -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of HASSAN Ayesha Sent: 2009-06-23 21:28 To: Rick Anderson; bc-gnso@icann.org Subject: RE: [bc-gnso] BC statement on IRT I thought the original brief statement reflected the discussion yesterday in the BC and the key is for members to submit their own comments to the consultation. My sense is the statement should be very brief so that members can express their own perspectives directly to the consultation process. To help reach a statement we can all support, I propose the following: "The BC recognizes the work and efforts of all those who participated in the IRT. The BC believes that this report is productive step forward in addressing several issues with respect to new gTLDs. The BC urges its members to post their individual comments on the substance of the report at Public comment space http://www.icann.org/en/announcements/announcement-4-29may09-en.htm" Regards, Ayesha -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Rick Anderson Sent: mercredi 24 juin 2009 03:01 To: bc-gnso@icann.org Subject: [bc-gnso] BC statement on IRT Interborder agrees with George's improved draft. cheers/Rick Rick Anderson EVP, InterBorder Holdings Ltd email: randerson@interborder.ca cell: (403) 830-1798 office: (403) 750-5535 ----- Original Message ----- From: owner-bc-gnso@icann.org <owner-bc-gnso@icann.org> To: 'mike@haven2.com' <mike@haven2.com>; 'icann@leap.com' <icann@leap.com> Cc: 'bc-gnso@icann.org' <bc-gnso@icann.org> Sent: Tue Jun 23 18:43:48 2009 Subject: Re: [bc-gnso] BC statement on IRT ICA supports George's alternative and dissents on the original text. Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell "Luck is the residue of design." -- Branch Rickey ----- Original Message ----- From: owner-bc-gnso@icann.org <owner-bc-gnso@icann.org> To: George Kirikos <icann@leap.com> Cc: BC gnso <bc-gnso@icann.org> Sent: Tue Jun 23 20:30:43 2009 Subject: Re: [bc-gnso] BC statement on IRT i stand with George on this one. mikey On Jun 23, 2009, at 7:24 PM, George Kirikos wrote:
Hello,
We do not support that proposed BC statement on the IRT. We propose an alternative and balanced statement as follows:
----- start proposed statement ------ "The BC appreciates the effort of the IP constituency's work in creating a proposal that would protect trademark holders interests. However, much work remains to be done to ensure that the needs of trademark holders are balanced against the needs of domain registrants for certainty, predictability and due process. The BC looks forward to working with the IP constituency, and other constituencies within the GNSO on an improved version of the IRT's report, one that can achieve consensus support of all stakeholders." ----- end proposed statement ------
As we have stated previously, we have grave concerns about the IRT, and the "answers" provided by the members of the IRT team have been spurious. To give just two concrete examples (there are many more if one reads our prior comments submitted in the official comment periods):
a) No good reason has been provided as to why the IRT proposes that *all* domain names, irregardless of age, should be subject to the URS, especially given that markholders ultimately would want the URS to apply to legacy TLDs such as com/net/org. The URS is an extraordinary procedure that would take down a domain name with short notice (so short that a registrant on vacation may not receive actual notice of a complaint). Such an extraordinary procedure should be targeted only towards the most abusive domain names, one where "time is of the essence." Time is not of the essence if a domain name is 10 years old! The onus should be on markholders to not delay in bringing complaints if there is truly a matter that is "urgent" and requires the URS. We proposed that the URS either apply only to domains younger than a certain age (e.g. 6 months), or that the time to respond to complaints be a function of the age of the domain (e.g. 15 days + the age of the domain in months). Businesses and consumers require certainty and due process, and a system like the URS as proposed that would threaten their legitimate domain name, one that they've owned for years, denies them both certainty and due process.
b) No good reason has been provided as to why the IRT proposes to limit notification to registrants to only 2 emails and 1 letter by post for the URS. Email is unreliable given the amount of spam that exists, and international mail might not be received in time to respond to a complaint, given the slow delivery times of the international postal system. We specifically pointed to opt-in fax as a highly reliable system to notify registrants of complaints, and the IRT provides excuses that leave objective people incredulous. Footnote 30 of the report stated:
"The IRT decided that such requirements would add significant complexity and cost to the system due to time zones and national and local laws regarding faxing and calling."
This is simply astonishing for the IRT to say, given that (a) the faxes are 100% opt-in, and (b) the UDRP has been providing fax notification for over 10 years without issues. The cost to send a 1-page fax notification of a complaint (using email to fax gateways) is on the order of 10 cents, far below the postal delivery stamp fees.
A legitimate URS complaint by a markholder will not be impacted if the registrant receives proper and timely notification (actual notice) by fax. The URS was supposedly intended for "clear cut" cases, and notification shouldn't impact the registrant's ability to defend a "clear cut" case of abuse.
However, illegitimate and frivolous URS complaints with weak claims that hope to win by default due to lack of registrant notification will greatly benefit by lack of fax notification, lack of actual notice. A legitimate registrant will strongly defend their domain name and is hurt by lack of the ability to respond and prepare a defence.
The only logical conclusion is that the IRT has intentionally acted to put the rights of illegitimate and frivolous URS complainants with weak claims ahead of legitimate domain registrants with strong defences, by putting up spurious obstacles to the domain registrants receiving actual notice and due process. This is no surprise given the IP's pro-complainant dominance of the IRT process.
While the IRT members posture in public that their report was a "compromise" I hope it is clear from just the above two cases (and there are more) that it truly was not any compromise, but was an extreme and unbalanced report.
Legitimate domain registrants like my company and others in the BC and other constituencies are prepared to work with the IP constituency to come up with a balanced solution within the GNSO process. But, until such time, the IRT report should continue to draw skepticism within the ICANN community, and be rejected.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
P.S. One can read our early substantial comments on the IRT, indeed with novel approaches (such as the concept of easements), that were ignored by the IRT:
http://forum.icann.org/lists/irt-draft-report/msg00000.html http://forum.icann.org/lists/irt-draft-report/msg00015.html http://forum.icann.org/lists/irt-draft-report/msg00016.html http://forum.icann.org/lists/irt-final-report/msg00000.html
- - - - - - - - - phone 651-647-6109 fax 866-280-2356 web www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.) This e-mail message and any attachments may contain confidential and/or privileged information intended only for the addressee. In the event this e-mail is sent to you in error, sender and sender's company do not waive confidentiality or privilege, and waiver may not be assumed. Any dissemination, distribution or copying of, or action taken in reliance on, the contents of this e-mail by anyone other than the intended recipient is prohibited. If you have been sent this e-mail in error, please destroy all copies and notify sender at the above e-mail address. Computer viruses can be transmitted by e-mail. You should check this e-mail message and any attachments for viruses. Sender and sender's company accept no liability for any damage caused by any virus transmitted by this e-mail. Like other forms of communication, e-mail communications may be vulnerable to interception by unauthorized parties. If you do not wish to communicate by e-mail, please notify sender. In the absence of such notification, your consent is assumed. Sender will not take any additional security measures (such as encryption) unless specifically requested.
What strikes me is that we are rehashing, to some extent, arguments that the BC resolved long ago. A vocal minority is loudly shouting about the Uniform Rapid Suspension system and other IRT proposals. But in concept the URS is a consensus BC position since April 2007, reiterated less than six months ago after a vote of the membership. Same with standardized sunrise. Those members in the minority should make their own comments, but I strongly believe the BC should reiterate its support for those concepts, in addition to thanking the IRT for its very hard work. I would like to go further, but will accept we cannot reach new consensus now. That does not mean we should lessen the impact of our prior consensus positions, by ignoring that they have been considered and adopted by the IRT. So, I would suggest the following, based on Ayesha's text: The BC appreciates the considerable work and efforts of all those who participated in the IRT. The BC believes that this report is productive step forward in addressing several consumer and IP protection issues with respect to new gTLDs. In particular, the BC appreciates that the IRT has adopted the essence of the BC's recommendations from April 2007 and January 2009 with respect to the Uniform Rapid Suspension program and the standardized sunrise recommendations. The BC expects its members will post their individual comments on the detailed substance of the report, including those URS and sunrise recommendations, at the Public comment space http://www.icann.org/en/announcements/announcement-4-29may09-en.htm. ------ Thanks, Mike Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Ron Andruff Sent: Tuesday, June 23, 2009 11:21 PM To: bc-gnso@icann.org Subject: RE: [bc-gnso] BC statement on IRT I think it is important for BC members, both here in Sydney and those not, to take a step back and reflect on what the IRT is and what it is tasked to do. To say it is a shame that all of our members are not here to be able to share in the on-going discussion and dialogue with the IRT work team and the larger ICANN community on this topic is an understatement. I can appreciate that, without the larger context which we here in Sydney can gain a better understand of (as a result of the "local" discourse), some members might view the IRT report as being considerably too little or too much vis-à-vis their expectations. However, at the B.C. meeting yesterday it was agreed by those present and on the call in line that, as it would be futile to try to reach constituency consensus on this topic, it would be better to simply note that the BC is pleased that "this work has been undertaken" and ask each member to make their individual comments in the public comments space. Clearly, IP issues MUST be addressed AND the pressures to roll out new gTLDs is not decreasing (ergo the IRT -- in some watered down form, I suspect -- WILL be adopted and included in the 3rd DAG). Therefore, RNA Partners supports Ayesha's recommendation and urges all members to note their corporate positions on the public comment list. Respectfully, RA Ronald N. Andruff RNA Partners, Inc. 220 Fifth Avenue, 20th floor New York, New York 10001 www.rnapartners.com V: +1 212 481 2820 x 11 F: +1 212 481 2859 -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of HASSAN Ayesha Sent: 2009-06-23 21:28 To: Rick Anderson; bc-gnso@icann.org Subject: RE: [bc-gnso] BC statement on IRT I thought the original brief statement reflected the discussion yesterday in the BC and the key is for members to submit their own comments to the consultation. My sense is the statement should be very brief so that members can express their own perspectives directly to the consultation process. To help reach a statement we can all support, I propose the following: "The BC recognizes the work and efforts of all those who participated in the IRT. The BC believes that this report is productive step forward in addressing several issues with respect to new gTLDs. The BC urges its members to post their individual comments on the substance of the report at Public comment space http://www.icann.org/en/announcements/announcement-4-29may09-en.htm" Regards, Ayesha -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Rick Anderson Sent: mercredi 24 juin 2009 03:01 To: bc-gnso@icann.org Subject: [bc-gnso] BC statement on IRT Interborder agrees with George's improved draft. cheers/Rick Rick Anderson EVP, InterBorder Holdings Ltd email: randerson@interborder.ca cell: (403) 830-1798 office: (403) 750-5535 ----- Original Message ----- From: owner-bc-gnso@icann.org <owner-bc-gnso@icann.org> To: 'mike@haven2.com' <mike@haven2.com>; 'icann@leap.com' <icann@leap.com> Cc: 'bc-gnso@icann.org' <bc-gnso@icann.org> Sent: Tue Jun 23 18:43:48 2009 Subject: Re: [bc-gnso] BC statement on IRT ICA supports George's alternative and dissents on the original text. Philip S. Corwin Partner, Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 2026635347/Office 2022556172/Cell "Luck is the residue of design." -- Branch Rickey ----- Original Message ----- From: owner-bc-gnso@icann.org <owner-bc-gnso@icann.org> To: George Kirikos <icann@leap.com> Cc: BC gnso <bc-gnso@icann.org> Sent: Tue Jun 23 20:30:43 2009 Subject: Re: [bc-gnso] BC statement on IRT i stand with George on this one. mikey On Jun 23, 2009, at 7:24 PM, George Kirikos wrote:
Hello,
We do not support that proposed BC statement on the IRT. We propose an alternative and balanced statement as follows:
----- start proposed statement ------ "The BC appreciates the effort of the IP constituency's work in creating a proposal that would protect trademark holders interests. However, much work remains to be done to ensure that the needs of trademark holders are balanced against the needs of domain registrants for certainty, predictability and due process. The BC looks forward to working with the IP constituency, and other constituencies within the GNSO on an improved version of the IRT's report, one that can achieve consensus support of all stakeholders." ----- end proposed statement ------
As we have stated previously, we have grave concerns about the IRT, and the "answers" provided by the members of the IRT team have been spurious. To give just two concrete examples (there are many more if one reads our prior comments submitted in the official comment periods):
a) No good reason has been provided as to why the IRT proposes that *all* domain names, irregardless of age, should be subject to the URS, especially given that markholders ultimately would want the URS to apply to legacy TLDs such as com/net/org. The URS is an extraordinary procedure that would take down a domain name with short notice (so short that a registrant on vacation may not receive actual notice of a complaint). Such an extraordinary procedure should be targeted only towards the most abusive domain names, one where "time is of the essence." Time is not of the essence if a domain name is 10 years old! The onus should be on markholders to not delay in bringing complaints if there is truly a matter that is "urgent" and requires the URS. We proposed that the URS either apply only to domains younger than a certain age (e.g. 6 months), or that the time to respond to complaints be a function of the age of the domain (e.g. 15 days + the age of the domain in months). Businesses and consumers require certainty and due process, and a system like the URS as proposed that would threaten their legitimate domain name, one that they've owned for years, denies them both certainty and due process.
b) No good reason has been provided as to why the IRT proposes to limit notification to registrants to only 2 emails and 1 letter by post for the URS. Email is unreliable given the amount of spam that exists, and international mail might not be received in time to respond to a complaint, given the slow delivery times of the international postal system. We specifically pointed to opt-in fax as a highly reliable system to notify registrants of complaints, and the IRT provides excuses that leave objective people incredulous. Footnote 30 of the report stated:
"The IRT decided that such requirements would add significant complexity and cost to the system due to time zones and national and local laws regarding faxing and calling."
This is simply astonishing for the IRT to say, given that (a) the faxes are 100% opt-in, and (b) the UDRP has been providing fax notification for over 10 years without issues. The cost to send a 1-page fax notification of a complaint (using email to fax gateways) is on the order of 10 cents, far below the postal delivery stamp fees.
A legitimate URS complaint by a markholder will not be impacted if the registrant receives proper and timely notification (actual notice) by fax. The URS was supposedly intended for "clear cut" cases, and notification shouldn't impact the registrant's ability to defend a "clear cut" case of abuse.
However, illegitimate and frivolous URS complaints with weak claims that hope to win by default due to lack of registrant notification will greatly benefit by lack of fax notification, lack of actual notice. A legitimate registrant will strongly defend their domain name and is hurt by lack of the ability to respond and prepare a defence.
The only logical conclusion is that the IRT has intentionally acted to put the rights of illegitimate and frivolous URS complainants with weak claims ahead of legitimate domain registrants with strong defences, by putting up spurious obstacles to the domain registrants receiving actual notice and due process. This is no surprise given the IP's pro-complainant dominance of the IRT process.
While the IRT members posture in public that their report was a "compromise" I hope it is clear from just the above two cases (and there are more) that it truly was not any compromise, but was an extreme and unbalanced report.
Legitimate domain registrants like my company and others in the BC and other constituencies are prepared to work with the IP constituency to come up with a balanced solution within the GNSO process. But, until such time, the IRT report should continue to draw skepticism within the ICANN community, and be rejected.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
P.S. One can read our early substantial comments on the IRT, indeed with novel approaches (such as the concept of easements), that were ignored by the IRT:
http://forum.icann.org/lists/irt-draft-report/msg00000.html http://forum.icann.org/lists/irt-draft-report/msg00015.html http://forum.icann.org/lists/irt-draft-report/msg00016.html http://forum.icann.org/lists/irt-final-report/msg00000.html
- - - - - - - - - phone 651-647-6109 fax 866-280-2356 web www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.) This e-mail message and any attachments may contain confidential and/or privileged information intended only for the addressee. In the event this e-mail is sent to you in error, sender and sender's company do not waive confidentiality or privilege, and waiver may not be assumed. Any dissemination, distribution or copying of, or action taken in reliance on, the contents of this e-mail by anyone other than the intended recipient is prohibited. If you have been sent this e-mail in error, please destroy all copies and notify sender at the above e-mail address. Computer viruses can be transmitted by e-mail. You should check this e-mail message and any attachments for viruses. Sender and sender's company accept no liability for any damage caused by any virus transmitted by this e-mail. Like other forms of communication, e-mail communications may be vulnerable to interception by unauthorized parties. If you do not wish to communicate by e-mail, please notify sender. In the absence of such notification, your consent is assumed. Sender will not take any additional security measures (such as encryption) unless specifically requested.
participants (7)
-
George Kirikos -
HASSAN Ayesha -
Marilyn Cade -
Mike Rodenbaugh -
Rick Anderson -
Ron Andruff -
Steve DelBianco