Oops, I kind of skipped a step there --- with the "tweaked" UDRP I suggested, one wouldn't necessarily have to have the same level of guarantee, given the default scenario (where the domain transfers if the money isn't put up by the registrant). However, I still think there should be *some* monetary damages (e.g. a few hundred bucks) even in that default scenario, to cover the "C&D" aspect of the "notice of dispute"). Those would be lower than the damages/costs in a full-blown contested UDRP. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Aug 9, 2017 at 6:41 PM, George Kirikos <icann@leap.com> wrote:
Hi Brian,
On Wed, Aug 9, 2017 at 5:44 PM, Beckham, Brian <brian.beckham@wipo.int> wrote:
George, in terms of your UDRP loser pays concept, do you have any thoughts on how to go about implementing this? Would e.g. registrars or registries take a (credit card) bond? As you can imagine, brand owners would likely support this, but have long raised implementation and enforcement concerns.
This would apply just to the landrush registrations, i.e. raising the bar for those registrants utilizing the procedure, helping to crowd out cybersquatters from going after the usual "130 sunrise" registrations. There'd be several ways make an efficient implementation, but the simplest might be:
1. impose the costs directly on the registrar, and leave it up to the registrar to perform due diligence on their registrants utilizing the landrush (e.g. getting indemnified for the risk, etc.). A registrar like Markmonitor or CSC whose famous customers want to register Apple.TLD or Google.TLD would face minimal risk. A more dodgy registrar whose non-famous customer wants to register Exxon.TLD or Verizon.TLD would face more risk, and would either deny the registrant completely, or have them put up more capital, pay more for insurance, etc. (or put their other domain names at risk). It would require registrars using the landrush to have appropriate levels of insurance. ICANN appears to have eliminated the insurance requirements a couple of years ago:
https://www.icann.org/news/blog/icann-waives-registrar-insurance-requirement...
but that could be undone, for this mechanism.
Alternatively,
2. direct development of a 3rd party guarantor/insurance/bonding (not necessarily the registrar, but some other entity that would be accountable and have appropriate financial backing (e.g. probably a few services would spring up to assess the risk, and could be distributed via registrars).
For efficiency, I'd tweak the UDRP slightly, to help ensure collection (getting the money up front) and efficiency for both sides (for both #1 and #2 above), namely:
Step A: Have TM owner file a very brief "notice of dispute" (i.e. minimal legal costs to prepare, putting up their loser pay costs (as a deposit) up front. In essence, it would be kind of like a C&D with some "oomph" behind it, since it's backed by money saying "we will file a dispute, and we're showing how serious we are as we already deposited money if we lose!".
Step B: The relevant guarantor (depending on #1 or #2 above) or the registrant themselves has N days (e.g. N = 20, N = 30) to put up the same amount, should they wish to defend the UDRP.
Step C: If the money is not put up, the domain automatically is awarded to the UDRP complainant (i.e. no panel fees, no decision). A "no contest", "no mas" kind of outcome (for the boxing fans!).
Step D: If the money is put up, UDRP complainant has M days (M = 20, or 30, or whatever) to submit the complaint to the relevant provider. UDRP respondent has similar time limits for a response. It goes to a decision. Loser loses the money they put up in A or B above.
Of course, cases could go to court at any time, before, during, or after the domain dispute, with a similar loser pays provision.
Cybersquatters would hate this system. Legitimate registrants would face little risk (and that "risk" is taken on knowingly, the price of using the landrush). Bona fide TM holders too should like it -- most TM holders *hate* having to pay defensive registration fees, for domains they don't want to use. If the domain name ends up with a legitimate registrant who isn't cybersquatting, that's a win-win for the TM holder who doesn't have to register that domain in their own name. "Sunrise gamers" would also hate it (since they'd now have competition in landrush from legitimate registrants, as per one of my emails earlier today).
To give a concrete example, there's a company called "Apple Auto Glass" here in Canada:
Suppose they wanted to register Apple.glass (although, that's currently reserved for some reason), and "win" it in a landrush auction against the famous computer company. Apple the computer company should be delighted, as that's one less domain name they have to pay for that they'll never use. And Apple the computer company would not likely file a domain name dispute. Apple Auto Glass would face limited exposure/risk, in the eyes of their registrar or guarantor, etc. for any future UDRP costs, either. If instead a cybersquatter got it, the loser pays system would (1) help the famous Apple computer company reduce costs of curative actions, and (2) punish more directly the cybersquatter, beyond what's available now. A cybersquatter who is punished enough goes out of business (e.g. iREIT).
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/