Hi Claudio, Thanks for your reply. Yes, the current implementation of the URS appears to leave much to be desired. I believe the intent was that the domain name would be suspended, and then go through the normal expiration cycle (which meant deletion after expiry). But, the actual implementation wasn't so clean. I'm not sure that implementing immediate cancellation would make the TM holder better off (i.e. keeping the domain name out of circulation for a while, and not having to pay for the renewals themselves might be perferable, compared with a quicker deletion). A delayed cancellation process also is desirable for a good faith domain name registrant, to allow ample time for appeal (within the URS) and/or external review by the courts (outside the URS). To show how "ugly" the current implementation is, consider this "bug" (REGISTRARS pay attention!). In the "URS Technical Requirements" https://newgtlds.icann.org/en/applicants/urs https://newgtlds.icann.org/en/applicants/urs/tech-requirements-17oct13-en.pd... one of the registrar requirements (page 5) is: "Registrar Requirement 3: Registrar MUST offer the option for the URS Complainant to extend a URS Suspended domain name's registration for up to one additional year (if allowed by the maximum validity period of the TLD) in cases where the URS Complainant prevailed. Registrar MUST pay the renewal fee for such domain name to the Registry Operator." Imagine a scenario where a registrar has domains that were registered for pennies. The registry later raises the renewal price to a very high amount (as we've seen some registries do), say $5 million (just for the sake of argument). Since the ***registrar*** MUST pay that renewal fee, they could be on the hook for some enormous payments to the registry! If you want to imagine an even "crazier" scenario, suppose a registry operator registers those domains *themselves* (or via a related party or shell company), sets up some URS disputes against "themselves" (and loses), raises the renewal fees, and then compels the registrar to pay for that renewal! Rinse, and repeat..... I think I've just discovered a new "innovative" business model for new gTLD registry operators! ;-) Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Mon, Jan 8, 2018 at 10:26 AM, claudio di gangi <ipcdigangi@gmail.com> wrote:
George, all,
Thanks for this note.
Just for clarification on the last point, as I understand the current remedies available under the URS does not include cancellation of the domain.
As a result, upon expiry the suspended domain can be renewed and used (including for abusive purposes) by the losing registrant of the URS decision.
To address this issue we can consider adding cancellation as a remedy (or otherwise modifying the URS) to minimize the need for repeated, serial enforcement against previously suspended domains.
Best regards, Claudio
On Mon, Jan 8, 2018 at 8:09 AM, George Kirikos <icann@leap.com> wrote:
Hi Paul,
Thanks for your thoughts. I agree that they are different. Just pointing out that there are other systems out there that don't have that role reversal feature.
Also, I believe some folks had mused about the possibility of a single DRP that integrated the URS and UDRP. The issue of creation of a "Notice of Dispute", that preceded the actual dispute, also has arisen. If such a system also handled the high number of defaults differently than today, then one result might be a much lower cost procedure in the case of defaults (i.e. it could be very lightweight like the YouTube procedure), and then reference to the courts for the disputes when both sides show up and are heavily contesting the matter.
In terms of integration, one way to look at the URS is that it's very similar to a UDRP where the Complainant (TM holder) asks only for cancellation, albeit that the URS cancellation happens with a delay (under the UDRP, the cancellation would happen almost immediately, after allowing for the appeal to the courts)
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Mon, Jan 8, 2018 at 6:30 AM, Paul Keating <Paul@law.es> wrote:
George,
I know that a response has already been posted but I wanted to add my quick thoughts.
I agree that the DMCA and the UDRP/URS are not identical. In fact the roles remain reversed throughout the UDRP/URS process. The DMCA merely provides a notice, take-down followed by the opportunity to revive the posting. Once reposting occurs the issue remains as it was before the notice - the copyright owner must proceed with litigation. The UDRP/URS however, results in the domain being transferred/suspended or not. In the case of transfer, it is the registrant that must file. In the case the complaint is denied then the trademark owner has that burden (like the copyright owner in the DMCA example).
PRK
On 1/6/18, 12:23 AM, "gnso-rpm-wg on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org on behalf of icann@leap.com> wrote:
Hi folks,
There was an interesting article published today about a copyright dispute involving "white noise" videos on YouTube:
https://gizmodo.com/man-s-youtube-video-of-white-noise-hit-with-five-copyr i-1821804093
which linked to the dispute procedure that YouTube follows:
https://support.google.com/youtube/answer/2797454
Going through the various links, it was very interesting that they even have a "Copyright School", see:
https://support.google.com/youtube/answer/2814000
(expand the "How to resolve a copyright strike" to see the link to it), which is quite interesting, given how often the education aspect for registrants has come up in our PDP's work.
Also of interest is the section on "Counter Notification Basics":
https://support.google.com/youtube/answer/2807684
where importantly it says:
"After we process your counter notification by forwarding it to the claimant, the claimant has 10 business days to provide us with evidence that they have initiated a court action to keep the content down."
and it's the content creator who posts the relevant jurisdiction:
https://support.google.com/youtube/answer/6005919
""I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside of the United States, the judicial district in which YouTube is located, and will accept service of process from the claimant."
As noted in prior threads, various issues arise under the URS (and UDRP) when the natural role of plaintiffs vs. defendants (had the URS/UDRP not existed) gets reversed (e.g. the Yoyo.email UK "cause of action issue", as well as IGO and other groups' claimed "sovereign immunity").
With the dispute resolution procedure followed by YouTube, instead the onus is on the copyright owner (the "claimant") to file the lawsuit, in the same natural way that would exist had that dispute resolution procedure not existed. Thus, none of the issues due to reversal of plaintiff/defendant arise.
I thought it would be of interest, especially as it also might also give insights as to how "defaults" are handled.
Food for thought.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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