URS / UDRP proposals -- data on registrar/registry compliance costs
Hi folks, In support of an upcoming proposal regarding allowing cost recovery by registrars and registries of compliance costs associated with the handling of URS and UDRP disputes, I wanted to share the following data (which I will then reference in the actual proposal). (a) I reached out to Reg Levy of Tucows, Direct of Compliance for the world's 2nd largest registrar (and also a member of this PDP), regarding time spent handling UDRP and/or URS complaints and was told: "With regard to URS, that applies primarily to registries, so we don't have any cost for for those. For UDRPs, I haven't done an analysis of how long it would take one of my team members to process a UDRP complaint; generally, it simply includes intake, locking the domain, and then unlocking or forwarding the domain upon resolution. A normal UDRP would likely take around 15 minutes but there are some tough ones (I've spent more than an hour on a few with Paul talking through the issues and figuring out how we will proceed) so I'd call it an average of 30–35 minutes per claim." (she said I could share this response with the PDP) (b) GoDaddy's registration agreement suggest that they'll charge an administrative fee (albeit to the registrant) for such compliance costs: https://ca.godaddy.com/legal-agreements "GoDaddy also reserves the right to charge you reasonable “administrative” fees" for (i) tasks GoDaddy may perform outside the normal scope of its Services, (ii) additional time and/or costs GoDaddy may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by GoDaddy in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) UDRP actions(s) in connection with your domain name(s) and/or disputes that require accounting or legal services, whether performed by GoDaddy staff or by outside firms retained by GoDaddy; (iii) recouping any and all costs and fees, including the cost of Services, incurred by GoDaddy as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with GoDaddy." and it has been $50 in the past: https://domaingang.com/domain-news/udrp-fee-reversed-godaddy-heres-done/ (c) Some URS and UDRP disputes involve multiple domains, increasing the complexity and thus the cost of compliance for registrars/registries on a variable per-domain name level, e.g. http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1661.html involved 1,542 domains, all of which need to be put on a legal hold/lock, checked to determine that they involve the same registrant, etc. (d) if any other registrars and registries wish to share data publicly on typical compliance costs (e.g. time per dispute, etc.), that would be wonderful. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Perhaps the co-chairs could clarify how they plan to deal with a proposal which exceeds the 250-word limit in various of the fields by seeking to incorporate the content of a much longer email? https://community.icann.org/display/RARPMRIAGPWG/URS+Proposals?preview=/9312... If we are all required to keep to the 250 word limit, then we should all keep to it, not seek to circumvent it. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 -----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 04 September 2018 22:57 To: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs Hi folks, In support of an upcoming proposal regarding allowing cost recovery by registrars and registries of compliance costs associated with the handling of URS and UDRP disputes, I wanted to share the following data (which I will then reference in the actual proposal). (a) I reached out to Reg Levy of Tucows, Direct of Compliance for the world's 2nd largest registrar (and also a member of this PDP), regarding time spent handling UDRP and/or URS complaints and was told: "With regard to URS, that applies primarily to registries, so we don't have any cost for for those. For UDRPs, I haven't done an analysis of how long it would take one of my team members to process a UDRP complaint; generally, it simply includes intake, locking the domain, and then unlocking or forwarding the domain upon resolution. A normal UDRP would likely take around 15 minutes but there are some tough ones (I've spent more than an hour on a few with Paul talking through the issues and figuring out how we will proceed) so I'd call it an average of 30–35 minutes per claim." (she said I could share this response with the PDP) (b) GoDaddy's registration agreement suggest that they'll charge an administrative fee (albeit to the registrant) for such compliance costs: https://ca.godaddy.com/legal-agreements "GoDaddy also reserves the right to charge you reasonable “administrative” fees" for (i) tasks GoDaddy may perform outside the normal scope of its Services, (ii) additional time and/or costs GoDaddy may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by GoDaddy in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) UDRP actions(s) in connection with your domain name(s) and/or disputes that require accounting or legal services, whether performed by GoDaddy staff or by outside firms retained by GoDaddy; (iii) recouping any and all costs and fees, including the cost of Services, incurred by GoDaddy as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with GoDaddy." and it has been $50 in the past: https://domaingang.com/domain-news/udrp-fee-reversed-godaddy-heres-done/ (c) Some URS and UDRP disputes involve multiple domains, increasing the complexity and thus the cost of compliance for registrars/registries on a variable per-domain name level, e.g. http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1661.html involved 1,542 domains, all of which need to be put on a legal hold/lock, checked to determine that they involve the same registrant, etc. (d) if any other registrars and registries wish to share data publicly on typical compliance costs (e.g. time per dispute, etc.), that would be wonderful. 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
Susan: I wasn't attempting to "circumvent" any word limits, nor was I even close to approaching the 250 word limit for any relevant fields in the URS proposals I submitted. I openly and transparently posted the data that I was relying on for my proposals on the mailing list, and opened them up for direct input by others who wanted to comment on them. Fields 5 and 6 of the URS / UDRP proposal that you link to cite the email at: https://mm.icann.org/pipermail/gnso-rpm-wg/2018-September/003256.html which reference data from Tucows and from GoDaddy. The quotes from Tucows and GoDaddy are obviously data elements, and would not reasonably count towards any 250 word limit. By my count, Field 5 itself had just 97 words, and Field 6 had 99 words. These were not submissions that suggest in any way that I was pressed up against word limits and was attempting to circumvent them. Indeed, I posted the data to the mailing list before I even started to fill out the relevant document, to make my submission. If every citation that was incorporated by reference had to incorporate the length of the actual cited data in the calculation of its length, then the Super Consolidated URS Table itself would be impermissible, given that it cites many documents and data sources that far exceed 250 words (e.g. the INTA "Study", Rebecca's spreadsheet, etc.). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Sep 5, 2018 at 5:25 AM, Susan Payne <susan.payne@valideus.com> wrote:
Perhaps the co-chairs could clarify how they plan to deal with a proposal which exceeds the 250-word limit in various of the fields by seeking to incorporate the content of a much longer email?
https://community.icann.org/display/RARPMRIAGPWG/URS+Proposals?preview=/9312...
If we are all required to keep to the 250 word limit, then we should all keep to it, not seek to circumvent it.
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 04 September 2018 22:57 To: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
Hi folks,
In support of an upcoming proposal regarding allowing cost recovery by registrars and registries of compliance costs associated with the handling of URS and UDRP disputes, I wanted to share the following data (which I will then reference in the actual proposal).
(a) I reached out to Reg Levy of Tucows, Direct of Compliance for the world's 2nd largest registrar (and also a member of this PDP), regarding time spent handling UDRP and/or URS complaints and was told:
"With regard to URS, that applies primarily to registries, so we don't have any cost for for those. For UDRPs, I haven't done an analysis of how long it would take one of my team members to process a UDRP complaint; generally, it simply includes intake, locking the domain, and then unlocking or forwarding the domain upon resolution. A normal UDRP would likely take around 15 minutes but there are some tough ones (I've spent more than an hour on a few with Paul talking through the issues and figuring out how we will proceed) so I'd call it an average of 30–35 minutes per claim." (she said I could share this response with the PDP)
(b) GoDaddy's registration agreement suggest that they'll charge an administrative fee (albeit to the registrant) for such compliance costs:
https://ca.godaddy.com/legal-agreements
"GoDaddy also reserves the right to charge you reasonable “administrative” fees" for (i) tasks GoDaddy may perform outside the normal scope of its Services, (ii) additional time and/or costs GoDaddy may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by GoDaddy in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) UDRP actions(s) in connection with your domain name(s) and/or disputes that require accounting or legal services, whether performed by GoDaddy staff or by outside firms retained by GoDaddy; (iii) recouping any and all costs and fees, including the cost of Services, incurred by GoDaddy as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with GoDaddy."
and it has been $50 in the past:
https://domaingang.com/domain-news/udrp-fee-reversed-godaddy-heres-done/
(c) Some URS and UDRP disputes involve multiple domains, increasing the complexity and thus the cost of compliance for registrars/registries on a variable per-domain name level, e.g.
http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1661.html
involved 1,542 domains, all of which need to be put on a legal hold/lock, checked to determine that they involve the same registrant, etc.
(d) if any other registrars and registries wish to share data publicly on typical compliance costs (e.g. time per dispute, etc.), that would be wonderful.
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
I can't be bothered to argue with you George Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com -----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 05 September 2018 11:39 To: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs Susan: I wasn't attempting to "circumvent" any word limits, nor was I even close to approaching the 250 word limit for any relevant fields in the URS proposals I submitted. I openly and transparently posted the data that I was relying on for my proposals on the mailing list, and opened them up for direct input by others who wanted to comment on them. Fields 5 and 6 of the URS / UDRP proposal that you link to cite the email at: https://mm.icann.org/pipermail/gnso-rpm-wg/2018-September/003256.html which reference data from Tucows and from GoDaddy. The quotes from Tucows and GoDaddy are obviously data elements, and would not reasonably count towards any 250 word limit. By my count, Field 5 itself had just 97 words, and Field 6 had 99 words. These were not submissions that suggest in any way that I was pressed up against word limits and was attempting to circumvent them. Indeed, I posted the data to the mailing list before I even started to fill out the relevant document, to make my submission. If every citation that was incorporated by reference had to incorporate the length of the actual cited data in the calculation of its length, then the Super Consolidated URS Table itself would be impermissible, given that it cites many documents and data sources that far exceed 250 words (e.g. the INTA "Study", Rebecca's spreadsheet, etc.). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Sep 5, 2018 at 5:25 AM, Susan Payne <susan.payne@valideus.com> wrote:
Perhaps the co-chairs could clarify how they plan to deal with a proposal which exceeds the 250-word limit in various of the fields by seeking to incorporate the content of a much longer email?
https://community.icann.org/display/RARPMRIAGPWG/URS+Proposals?preview =/93126760/93128452/URS-Proposal-04%20Sep%202018-1.pdf
If we are all required to keep to the 250 word limit, then we should all keep to it, not seek to circumvent it.
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 04 September 2018 22:57 To: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
Hi folks,
In support of an upcoming proposal regarding allowing cost recovery by registrars and registries of compliance costs associated with the handling of URS and UDRP disputes, I wanted to share the following data (which I will then reference in the actual proposal).
(a) I reached out to Reg Levy of Tucows, Direct of Compliance for the world's 2nd largest registrar (and also a member of this PDP), regarding time spent handling UDRP and/or URS complaints and was told:
"With regard to URS, that applies primarily to registries, so we don't have any cost for for those. For UDRPs, I haven't done an analysis of how long it would take one of my team members to process a UDRP complaint; generally, it simply includes intake, locking the domain, and then unlocking or forwarding the domain upon resolution. A normal UDRP would likely take around 15 minutes but there are some tough ones (I've spent more than an hour on a few with Paul talking through the issues and figuring out how we will proceed) so I'd call it an average of 30–35 minutes per claim." (she said I could share this response with the PDP)
(b) GoDaddy's registration agreement suggest that they'll charge an administrative fee (albeit to the registrant) for such compliance costs:
https://ca.godaddy.com/legal-agreements
"GoDaddy also reserves the right to charge you reasonable “administrative” fees" for (i) tasks GoDaddy may perform outside the normal scope of its Services, (ii) additional time and/or costs GoDaddy may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by GoDaddy in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) UDRP actions(s) in connection with your domain name(s) and/or disputes that require accounting or legal services, whether performed by GoDaddy staff or by outside firms retained by GoDaddy; (iii) recouping any and all costs and fees, including the cost of Services, incurred by GoDaddy as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with GoDaddy."
and it has been $50 in the past:
https://domaingang.com/domain-news/udrp-fee-reversed-godaddy-heres-don e/
(c) Some URS and UDRP disputes involve multiple domains, increasing the complexity and thus the cost of compliance for registrars/registries on a variable per-domain name level, e.g.
http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1661.html
involved 1,542 domains, all of which need to be put on a legal hold/lock, checked to determine that they involve the same registrant, etc.
(d) if any other registrars and registries wish to share data publicly on typical compliance costs (e.g. time per dispute, etc.), that would be wonderful.
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
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Great, Susan. I wasn't attempting to enter into any "argument" with you, but was simply explaining why the premise of your first email was incorrect. The numbers (97 words and 99 words) speak for themselves, and were far below the 250 word limit of each field. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Sep 5, 2018 at 6:52 AM, Susan Payne <susan.payne@valideus.com> wrote:
I can't be bothered to argue with you George
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com
-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 05 September 2018 11:39 To: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
Susan:
I wasn't attempting to "circumvent" any word limits, nor was I even close to approaching the 250 word limit for any relevant fields in the URS proposals I submitted. I openly and transparently posted the data that I was relying on for my proposals on the mailing list, and opened them up for direct input by others who wanted to comment on them.
Fields 5 and 6 of the URS / UDRP proposal that you link to cite the email at:
https://mm.icann.org/pipermail/gnso-rpm-wg/2018-September/003256.html
which reference data from Tucows and from GoDaddy. The quotes from Tucows and GoDaddy are obviously data elements, and would not reasonably count towards any 250 word limit. By my count, Field 5 itself had just 97 words, and Field 6 had 99 words. These were not submissions that suggest in any way that I was pressed up against word limits and was attempting to circumvent them. Indeed, I posted the data to the mailing list before I even started to fill out the relevant document, to make my submission.
If every citation that was incorporated by reference had to incorporate the length of the actual cited data in the calculation of its length, then the Super Consolidated URS Table itself would be impermissible, given that it cites many documents and data sources that far exceed 250 words (e.g. the INTA "Study", Rebecca's spreadsheet, etc.).
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Wed, Sep 5, 2018 at 5:25 AM, Susan Payne <susan.payne@valideus.com> wrote:
Perhaps the co-chairs could clarify how they plan to deal with a proposal which exceeds the 250-word limit in various of the fields by seeking to incorporate the content of a much longer email?
https://community.icann.org/display/RARPMRIAGPWG/URS+Proposals?preview =/93126760/93128452/URS-Proposal-04%20Sep%202018-1.pdf
If we are all required to keep to the 250 word limit, then we should all keep to it, not seek to circumvent it.
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 04 September 2018 22:57 To: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
Hi folks,
In support of an upcoming proposal regarding allowing cost recovery by registrars and registries of compliance costs associated with the handling of URS and UDRP disputes, I wanted to share the following data (which I will then reference in the actual proposal).
(a) I reached out to Reg Levy of Tucows, Direct of Compliance for the world's 2nd largest registrar (and also a member of this PDP), regarding time spent handling UDRP and/or URS complaints and was told:
"With regard to URS, that applies primarily to registries, so we don't have any cost for for those. For UDRPs, I haven't done an analysis of how long it would take one of my team members to process a UDRP complaint; generally, it simply includes intake, locking the domain, and then unlocking or forwarding the domain upon resolution. A normal UDRP would likely take around 15 minutes but there are some tough ones (I've spent more than an hour on a few with Paul talking through the issues and figuring out how we will proceed) so I'd call it an average of 30–35 minutes per claim." (she said I could share this response with the PDP)
(b) GoDaddy's registration agreement suggest that they'll charge an administrative fee (albeit to the registrant) for such compliance costs:
https://ca.godaddy.com/legal-agreements
"GoDaddy also reserves the right to charge you reasonable “administrative” fees" for (i) tasks GoDaddy may perform outside the normal scope of its Services, (ii) additional time and/or costs GoDaddy may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by GoDaddy in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) UDRP actions(s) in connection with your domain name(s) and/or disputes that require accounting or legal services, whether performed by GoDaddy staff or by outside firms retained by GoDaddy; (iii) recouping any and all costs and fees, including the cost of Services, incurred by GoDaddy as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with GoDaddy."
and it has been $50 in the past:
https://domaingang.com/domain-news/udrp-fee-reversed-godaddy-heres-don e/
(c) Some URS and UDRP disputes involve multiple domains, increasing the complexity and thus the cost of compliance for registrars/registries on a variable per-domain name level, e.g.
http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1661.html
involved 1,542 domains, all of which need to be put on a legal hold/lock, checked to determine that they involve the same registrant, etc.
(d) if any other registrars and registries wish to share data publicly on typical compliance costs (e.g. time per dispute, etc.), that would be wonderful.
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
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee. The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day. Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too. Jonathan Frost On Tue, Sep 4, 2018 at 5:57 PM George Kirikos <icann@leap.com> wrote:
Hi folks,
In support of an upcoming proposal regarding allowing cost recovery by registrars and registries of compliance costs associated with the handling of URS and UDRP disputes, I wanted to share the following data (which I will then reference in the actual proposal).
(a) I reached out to Reg Levy of Tucows, Direct of Compliance for the world's 2nd largest registrar (and also a member of this PDP), regarding time spent handling UDRP and/or URS complaints and was told:
"With regard to URS, that applies primarily to registries, so we don't have any cost for for those. For UDRPs, I haven't done an analysis of how long it would take one of my team members to process a UDRP complaint; generally, it simply includes intake, locking the domain, and then unlocking or forwarding the domain upon resolution. A normal UDRP would likely take around 15 minutes but there are some tough ones (I've spent more than an hour on a few with Paul talking through the issues and figuring out how we will proceed) so I'd call it an average of 30–35 minutes per claim." (she said I could share this response with the PDP)
(b) GoDaddy's registration agreement suggest that they'll charge an administrative fee (albeit to the registrant) for such compliance costs:
https://ca.godaddy.com/legal-agreements
"GoDaddy also reserves the right to charge you reasonable “administrative” fees" for (i) tasks GoDaddy may perform outside the normal scope of its Services, (ii) additional time and/or costs GoDaddy may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by GoDaddy in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) UDRP actions(s) in connection with your domain name(s) and/or disputes that require accounting or legal services, whether performed by GoDaddy staff or by outside firms retained by GoDaddy; (iii) recouping any and all costs and fees, including the cost of Services, incurred by GoDaddy as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with GoDaddy."
and it has been $50 in the past:
https://domaingang.com/domain-news/udrp-fee-reversed-godaddy-heres-done/
(c) Some URS and UDRP disputes involve multiple domains, increasing the complexity and thus the cost of compliance for registrars/registries on a variable per-domain name level, e.g.
http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1661.html
involved 1,542 domains, all of which need to be put on a legal hold/lock, checked to determine that they involve the same registrant, etc.
(d) if any other registrars and registries wish to share data publicly on typical compliance costs (e.g. time per dispute, etc.), that would be wonderful.
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
What are some of the “ambiguities in complying with the rules”? Doug From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 1:15 PM To: icann@leap.com Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee. The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day. Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too. Jonathan Frost
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP). Jonathan On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 1:15 PM *To:* icann@leap.com *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described. Doug From: Jonathan Frost <jonathan@get.club> Sent: Wednesday, September 5, 2018 1:59 PM To: Doug@giga.law Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP). Jonathan On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law <mailto:Doug@giga.law> > wrote: What are some of the “ambiguities in complying with the rules”? Doug From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 1:15 PM To: icann@leap.com <mailto:icann@leap.com> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee. The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day. Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too. Jonathan Frost _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
If this is an uncontemplated interaction between the URS and UDRP, which puts the two policies into conflict, then it's my hope that Jonathan will submit a proposal by tomorrow's deadline so that the working group can address it [perhaps in Phase 2? Although, it could be narrowed to be solved entirely in this Phase 1, if no changes are required to the UDRP]. It appears the situation involves a TM holder winning a URS, and then following that up with a UDRP. The outcome of the UDRP doesn't necessarily override any locks in the URS?? Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Sep 5, 2018 at 2:19 PM, Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
From: Jonathan Frost <jonathan@get.club> Sent: Wednesday, September 5, 2018 1:59 PM To: Doug@giga.law Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 1:15 PM To: icann@leap.com Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP. My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome). That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated. Jonathan On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
*From:* Jonathan Frost <jonathan@get.club> *Sent:* Wednesday, September 5, 2018 1:59 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 1:15 PM *To:* icann@leap.com *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi Jonathan, Great point about the administrative overhead associated with the required response time (i.e. whether or not a complaint is actually received on a given day, some staff time must be allocated, each day for each of the 365 days in the calendar year, even on holidays and weekends, to be able to respond within 24 hours). Can you give a cost estimate of that overhead, on a per TLD or per registrar basis, annualized? Doing some rough back of the envelope calculations of my own, even if just 10 minutes/day were needed to check in on potential disputes that needed to be administered by a registrar/registry, that's 3650 minutes per year, or 60.83 hours per year. At $100/hr, that's a fixed overhead of $6,083/yr per registrar/registry (although, there's some obvious economies of scale for registrars/registries that own/manage multiple accreditations and/or multiple TLDs). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Sep 5, 2018 at 2:39 PM, Jonathan Frost <jonathan@get.club> wrote:
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP.
My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome).
That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated.
Jonathan
On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
From: Jonathan Frost <jonathan@get.club> Sent: Wednesday, September 5, 2018 1:59 PM To: Doug@giga.law Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 1:15 PM To: icann@leap.com Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors. From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 2:39 PM To: Doug@giga.law Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP. My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome). That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated. Jonathan On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law<mailto:Doug@giga.law>> wrote: Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described. Doug From: Jonathan Frost <jonathan@get.club<mailto:jonathan@get.club>> Sent: Wednesday, September 5, 2018 1:59 PM To: Doug@giga.law<mailto:Doug@giga.law> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP). Jonathan On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law<mailto:Doug@giga.law>> wrote: What are some of the “ambiguities in complying with the rules”? Doug From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 1:15 PM To: icann@leap.com<mailto:icann@leap.com> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee. The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day. Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too. Jonathan Frost _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Georges I tend to agree.... If this is going to be considered further then I think we need to look at 1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and 2) if there any is correlation between the age of the domain and the number of complaints? On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 2:39 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP.
My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome).
That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated.
Jonathan
On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
*From:* Jonathan Frost <jonathan@get.club> *Sent:* Wednesday, September 5, 2018 1:59 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 1:15 PM *To:* icann@leap.com *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
------------------------------
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
------------------------------
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration? Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies. Mitch Stoltz Senior Staff Attorney, EFF | 415-436-9333 x142 https://www.eff.org/donate | https://act.eff.org/ On 9/5/18 2:55 PM, Paul Tattersfield wrote:
Georges I tend to agree....
If this is going to be considered further then I think we need to look at
1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and
2) if there any is correlation between the age of the domain and the number of complaints?
On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote:
Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
*From:*gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 2:39 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org>> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP.
My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome).
That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated.
Jonathan
On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law <mailto:Doug@giga.law>> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
*From:* Jonathan Frost <jonathan@get.club <mailto:jonathan@get.club>> *Sent:* Wednesday, September 5, 2018 1:59 PM *To:* Doug@giga.law <mailto:Doug@giga.law> *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org>> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law <mailto:Doug@giga.law>> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 1:15 PM *To:* icann@leap.com <mailto:icann@leap.com> *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org>> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
------------------------------------------------------------------------
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
------------------------------------------------------------------------
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I agree with Mitch. It's completely impractical to expect registrars to collect additional fees from parties that lose URS or UDRP proceedings. These systems are established to protect mark owners. It's only reasonable to expect the people who benefit from these processes to pay for them. On Wed, Sep 5, 2018 at 8:21 PM Mitch Stoltz <mitch@eff.org> wrote:
Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration?
Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies.
Mitch Stoltz Senior Staff Attorney, EFF | 415-436-9333 x142https://www.eff.org/donate | https://act.eff.org/
On 9/5/18 2:55 PM, Paul Tattersfield wrote:
Georges I tend to agree....
If this is going to be considered further then I think we need to look at
1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and
2) if there any is correlation between the age of the domain and the number of complaints?
On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 2:39 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP.
My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome).
That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated.
Jonathan
On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
*From:* Jonathan Frost <jonathan@get.club> *Sent:* Wednesday, September 5, 2018 1:59 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 1:15 PM *To:* icann@leap.com *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
------------------------------
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
------------------------------
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing listgnso-rpm-wg@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Michael: Thank you for making my point. If the people who benefit from the processes are expected to bear the cost, then registrars and registries who benefit from the process of providing registration services and selling domain names should likewise bear their costs. As they benefit from the sale of domain names, they should bear their own costs just like brands have to do so under the existing regime. A simple solution would be for registrars and registries to charge slightly more for a domain name to cover these claimed costs. After all you expect brand owners to do that. What do you think ultimately happens. These costs, which are not insignificant and would be astronomical if you take George K's ill thought out argument that everything should go to the courts, ultimately get passed on to the consumer in some form or another (higher price point, lower quality, less volume for the same cost, etc). The bottom line is that figuring out ways to address abusive registrations quickly and efficiently is good for everyone, including consumers. (unless of course no one cares about consumers, which I hope is not the case). As for penalties, you just need a little imagination here. "Penalties" does not simply mean pay money, it can include things such as losing privileges or having obligations imposed. For example, a repeat offender that meets a certain threshold could risk losing privacy privileges, disclosure of payment information, seizure of other names in their portfolio, placement on a shared bad actor list etc.. Companies like eBay, Amazon and others have found some ways to deal with repeat bad actors. They are not full proof systems, but they help to some extent in stemming some bad activity. Are registrars and registries not capable of coming up with some measures as well to address known bad actors and their proxies. I would propose that there be discussions on this point. From: mkaranicolas@gmail.com Sent: September 5, 2018 10:07 PM To: mitch@eff.org Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree with Mitch. It's completely impractical to expect registrars to collect additional fees from parties that lose URS or UDRP proceedings. These systems are established to protect mark owners. It's only reasonable to expect the people who benefit from these processes to pay for them. On Wed, Sep 5, 2018 at 8:21 PM Mitch Stoltz <mitch@eff.org<mailto:mitch@eff.org>> wrote: Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration? Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies. Mitch Stoltz Senior Staff Attorney, EFF | 415-436-9333 x142 https://www.eff.org/donate | https://act.eff.org/ On 9/5/18 2:55 PM, Paul Tattersfield wrote: Georges I tend to agree.... If this is going to be considered further then I think we need to look at 1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and 2) if there any is correlation between the age of the domain and the number of complaints? On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors. From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 2:39 PM To: Doug@giga.law<mailto:Doug@giga.law> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP. My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome). That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated. Jonathan On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law<mailto:Doug@giga.law>> wrote: Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described. Doug From: Jonathan Frost <jonathan@get.club<mailto:jonathan@get.club>> Sent: Wednesday, September 5, 2018 1:59 PM To: Doug@giga.law<mailto:Doug@giga.law> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP). Jonathan On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law<mailto:Doug@giga.law>> wrote: What are some of the “ambiguities in complying with the rules”? Doug From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 1:15 PM To: icann@leap.com<mailto:icann@leap.com> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee. The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day. Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too. Jonathan Frost _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Top marks for creativity, but if you're actually arguing that brand owners are not the primary beneficiaries of the URS and UDRP systems then we've entered the realm of the absurd. Clearly these systems were set up to protect IP interests - else the IPC would not be arguing so vociferously in support of them. I don't want to dig too much into the question of alternative penalties, as I think it drags us away from the core questions about cost recovery that this thread is focused on - but I will point out that privacy is not a "privilege" granted by companies - it is a human right. On Thu, Sep 6, 2018 at 10:35 AM Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Michael:
Thank you for making my point. If the people who benefit from the processes are expected to bear the cost, then registrars and registries who benefit from the process of providing registration services and selling domain names should likewise bear their costs. As they benefit from the sale of domain names, they should bear their own costs just like brands have to do so under the existing regime. A simple solution would be for registrars and registries to charge slightly more for a domain name to cover these claimed costs. After all you expect brand owners to do that. What do you think ultimately happens. These costs, which are not insignificant and would be astronomical if you take George K's ill thought out argument that everything should go to the courts, ultimately get passed on to the consumer in some form or another (higher price point, lower quality, less volume for the same cost, etc). The bottom line is that figuring out ways to address abusive registrations quickly and efficiently is good for everyone, including consumers. (unless of course no one cares about consumers, which I hope is not the case).
As for penalties, you just need a little imagination here. "Penalties" does not simply mean pay money, it can include things such as losing privileges or having obligations imposed. For example, a repeat offender that meets a certain threshold could risk losing privacy privileges, disclosure of payment information, seizure of other names in their portfolio, placement on a shared bad actor list etc.. Companies like eBay, Amazon and others have found some ways to deal with repeat bad actors. They are not full proof systems, but they help to some extent in stemming some bad activity. Are registrars and registries not capable of coming up with some measures as well to address known bad actors and their proxies. I would propose that there be discussions on this point.
*From:* mkaranicolas@gmail.com *Sent:* September 5, 2018 10:07 PM *To:* mitch@eff.org *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree with Mitch. It's completely impractical to expect registrars to collect additional fees from parties that lose URS or UDRP proceedings.
These systems are established to protect mark owners. It's only reasonable to expect the people who benefit from these processes to pay for them.
On Wed, Sep 5, 2018 at 8:21 PM Mitch Stoltz <mitch@eff.org> wrote:
Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration?
Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies.
Mitch Stoltz Senior Staff Attorney, EFF | 415-436-9333 x142https://www.eff.org/donate | https://act.eff.org/
On 9/5/18 2:55 PM, Paul Tattersfield wrote:
Georges I tend to agree....
If this is going to be considered further then I think we need to look at
1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and
2) if there any is correlation between the age of the domain and the number of complaints?
On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 2:39 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP.
My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome).
That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated.
Jonathan
On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
*From:* Jonathan Frost <jonathan@get.club> *Sent:* Wednesday, September 5, 2018 1:59 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 1:15 PM *To:* icann@leap.com *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
------------------------------
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
------------------------------
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing listgnso-rpm-wg@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Not sure what is so hard to understand here. The proposal that was floated yesterday is that registrars registries have claimed costs arising from the UDRP and URS and should get compensated. That likely means an increase in fees. Who pays that. If it means that this should be a brand constituency cost because they benefit, then similarly the argument is that registries and registrars benefit from a system that allows easy registration of domain names at low cost – and from which they presumably make money (a system that as presently formulated puts burdens on another constituency. So my point, to make it as clear as possible, is that any alleged costs to the registrars and registries are their costs to bear as part of doing business, just like brand owners have to bear their costs at this point to enforce their rights through the UDRP and URS. As to penalties, we can discuss that further at a later point. I won’t address your privacy is a human right point, because we all know that privacy means different things in different parts of the world, is treated differently under various regimes, and is not an absolute right as it is often tempered by other considerations (e.g. illegal behavior, law enforcement etc.). The point, again, is to think creatively in addressing repeat abusive registrations by bad actors and trying to stem the flow which benefits us all and consumers. From: Michael Karanicolas <mkaranicolas@gmail.com> Sent: Thursday, September 6, 2018 11:33 AM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com> Cc: Mitch Stoltz <mitch@eff.org>; gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs Top marks for creativity, but if you're actually arguing that brand owners are not the primary beneficiaries of the URS and UDRP systems then we've entered the realm of the absurd. Clearly these systems were set up to protect IP interests - else the IPC would not be arguing so vociferously in support of them. I don't want to dig too much into the question of alternative penalties, as I think it drags us away from the core questions about cost recovery that this thread is focused on - but I will point out that privacy is not a "privilege" granted by companies - it is a human right. On Thu, Sep 6, 2018 at 10:35 AM Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Michael: Thank you for making my point. If the people who benefit from the processes are expected to bear the cost, then registrars and registries who benefit from the process of providing registration services and selling domain names should likewise bear their costs. As they benefit from the sale of domain names, they should bear their own costs just like brands have to do so under the existing regime. A simple solution would be for registrars and registries to charge slightly more for a domain name to cover these claimed costs. After all you expect brand owners to do that. What do you think ultimately happens. These costs, which are not insignificant and would be astronomical if you take George K's ill thought out argument that everything should go to the courts, ultimately get passed on to the consumer in some form or another (higher price point, lower quality, less volume for the same cost, etc). The bottom line is that figuring out ways to address abusive registrations quickly and efficiently is good for everyone, including consumers. (unless of course no one cares about consumers, which I hope is not the case). As for penalties, you just need a little imagination here. "Penalties" does not simply mean pay money, it can include things such as losing privileges or having obligations imposed. For example, a repeat offender that meets a certain threshold could risk losing privacy privileges, disclosure of payment information, seizure of other names in their portfolio, placement on a shared bad actor list etc.. Companies like eBay, Amazon and others have found some ways to deal with repeat bad actors. They are not full proof systems, but they help to some extent in stemming some bad activity. Are registrars and registries not capable of coming up with some measures as well to address known bad actors and their proxies. I would propose that there be discussions on this point. From: mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com> Sent: September 5, 2018 10:07 PM To: mitch@eff.org<mailto:mitch@eff.org> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree with Mitch. It's completely impractical to expect registrars to collect additional fees from parties that lose URS or UDRP proceedings. These systems are established to protect mark owners. It's only reasonable to expect the people who benefit from these processes to pay for them. On Wed, Sep 5, 2018 at 8:21 PM Mitch Stoltz <mitch@eff.org<mailto:mitch@eff.org>> wrote: Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration? Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies. Mitch Stoltz Senior Staff Attorney, EFF | 415-436-9333 x142 https://www.eff.org/donate | https://act.eff.org/ On 9/5/18 2:55 PM, Paul Tattersfield wrote: Georges I tend to agree.... If this is going to be considered further then I think we need to look at 1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and 2) if there any is correlation between the age of the domain and the number of complaints? On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors. From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 2:39 PM To: Doug@giga.law<mailto:Doug@giga.law> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP. My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome). That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated. Jonathan On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law<mailto:Doug@giga.law>> wrote: Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described. Doug From: Jonathan Frost <jonathan@get.club<mailto:jonathan@get.club>> Sent: Wednesday, September 5, 2018 1:59 PM To: Doug@giga.law<mailto:Doug@giga.law> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP). Jonathan On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law<mailto:Doug@giga.law>> wrote: What are some of the “ambiguities in complying with the rules”? Doug From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 1:15 PM To: icann@leap.com<mailto:icann@leap.com> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee. The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day. Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too. Jonathan Frost _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
It’s important not to confuse privacy with accountability. If a registrar wishes to offer their client privacy that's a great service, but as the registrar of record they are not innocent bystanders and they have to accept a bit more responsibility for accountability.. On Thu, Sep 6, 2018 at 4:34 PM Michael Karanicolas <mkaranicolas@gmail.com> wrote:
Top marks for creativity, but if you're actually arguing that brand owners are not the primary beneficiaries of the URS and UDRP systems then we've entered the realm of the absurd. Clearly these systems were set up to protect IP interests - else the IPC would not be arguing so vociferously in support of them.
I don't want to dig too much into the question of alternative penalties, as I think it drags us away from the core questions about cost recovery that this thread is focused on - but I will point out that privacy is not a "privilege" granted by companies - it is a human right.
On Thu, Sep 6, 2018 at 10:35 AM Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Michael:
Thank you for making my point. If the people who benefit from the processes are expected to bear the cost, then registrars and registries who benefit from the process of providing registration services and selling domain names should likewise bear their costs. As they benefit from the sale of domain names, they should bear their own costs just like brands have to do so under the existing regime. A simple solution would be for registrars and registries to charge slightly more for a domain name to cover these claimed costs. After all you expect brand owners to do that. What do you think ultimately happens. These costs, which are not insignificant and would be astronomical if you take George K's ill thought out argument that everything should go to the courts, ultimately get passed on to the consumer in some form or another (higher price point, lower quality, less volume for the same cost, etc). The bottom line is that figuring out ways to address abusive registrations quickly and efficiently is good for everyone, including consumers. (unless of course no one cares about consumers, which I hope is not the case).
As for penalties, you just need a little imagination here. "Penalties" does not simply mean pay money, it can include things such as losing privileges or having obligations imposed. For example, a repeat offender that meets a certain threshold could risk losing privacy privileges, disclosure of payment information, seizure of other names in their portfolio, placement on a shared bad actor list etc.. Companies like eBay, Amazon and others have found some ways to deal with repeat bad actors. They are not full proof systems, but they help to some extent in stemming some bad activity. Are registrars and registries not capable of coming up with some measures as well to address known bad actors and their proxies. I would propose that there be discussions on this point.
*From:* mkaranicolas@gmail.com *Sent:* September 5, 2018 10:07 PM *To:* mitch@eff.org *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree with Mitch. It's completely impractical to expect registrars to collect additional fees from parties that lose URS or UDRP proceedings.
These systems are established to protect mark owners. It's only reasonable to expect the people who benefit from these processes to pay for them.
On Wed, Sep 5, 2018 at 8:21 PM Mitch Stoltz <mitch@eff.org> wrote:
Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration?
Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies.
Mitch Stoltz Senior Staff Attorney, EFF | 415-436-9333 x142https://www.eff.org/donate | https://act.eff.org/
On 9/5/18 2:55 PM, Paul Tattersfield wrote:
Georges I tend to agree....
If this is going to be considered further then I think we need to look at
1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and
2) if there any is correlation between the age of the domain and the number of complaints?
On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 2:39 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP.
My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome).
That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated.
Jonathan
On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
*From:* Jonathan Frost <jonathan@get.club> *Sent:* Wednesday, September 5, 2018 1:59 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 1:15 PM *To:* icann@leap.com *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
------------------------------
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
------------------------------
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing listgnso-rpm-wg@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Instead of talking about "penalties", let's instead turn it around and think about providing additional *benefits* for signalling desirable behaviour. While I don't agree with everything Georges N., wrote, I think he's on the right track that brainstorming imaginative ideas can be beneficial. For example, the popular game Fortnite added a new emote to their game, that was only available to those who enabled 2-factor authentication: https://techcrunch.com/2018/08/23/fortnite-players-can-unlock-a-new-emote-if... So, they wanted to promote security (which reduces support costs, stolen accounts, etc.), and provided a benefit to encourage adoption. This is an example of "gamification" -- https://en.wikipedia.org/wiki/Gamification In the ICANN context, perhaps we want to encourage registrants to become more familiar with the URS and UDRP, i.e. an educational goal. One possibility is to develop an online course or quiz about cybersquatting, doing TM lookups before registering domains, etc.. Upon successful completion by registrants, one can get a reward, e.g. the ability to add an emoji or checkmark or badge next to your name in the WHOIS/RDAP. Or 5 extra days to respond to a URS/UDRP. Or some other creative benefit. (1 cent per year reduction in ICANN fees for all domains!) Folks will expend efforts to gain "meaningless" social status like a checkmark in Twitter, or unlocking an emote in Fortnite, etc. Add a registered legal contact to your WHOIS (which encourages contact and settlement of disputes brought by 3rd parties even before getting to a URS/UDRP), and get similar kinds of benefits. Have a below-average rate of abuse, UDRP complaints, URS complaints etc. at your registrar, and get a certificate from ICANN which can be used for marketing (gold star, etc.) (or some other benefits, fee reduction). Have a faster-than-average turnaround time for making decisions by URS/UDRP panelists, and get your name in "bold" on the list of panelists, or have a rabbit icon next to your name. :-) Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Thu, Sep 6, 2018 at 11:33 AM, Michael Karanicolas <mkaranicolas@gmail.com
wrote:
Top marks for creativity, but if you're actually arguing that brand owners are not the primary beneficiaries of the URS and UDRP systems then we've entered the realm of the absurd. Clearly these systems were set up to protect IP interests - else the IPC would not be arguing so vociferously in support of them.
I don't want to dig too much into the question of alternative penalties, as I think it drags us away from the core questions about cost recovery that this thread is focused on - but I will point out that privacy is not a "privilege" granted by companies - it is a human right.
On Thu, Sep 6, 2018 at 10:35 AM Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Michael:
Thank you for making my point. If the people who benefit from the processes are expected to bear the cost, then registrars and registries who benefit from the process of providing registration services and selling domain names should likewise bear their costs. As they benefit from the sale of domain names, they should bear their own costs just like brands have to do so under the existing regime. A simple solution would be for registrars and registries to charge slightly more for a domain name to cover these claimed costs. After all you expect brand owners to do that. What do you think ultimately happens. These costs, which are not insignificant and would be astronomical if you take George K's ill thought out argument that everything should go to the courts, ultimately get passed on to the consumer in some form or another (higher price point, lower quality, less volume for the same cost, etc). The bottom line is that figuring out ways to address abusive registrations quickly and efficiently is good for everyone, including consumers. (unless of course no one cares about consumers, which I hope is not the case).
As for penalties, you just need a little imagination here. "Penalties" does not simply mean pay money, it can include things such as losing privileges or having obligations imposed. For example, a repeat offender that meets a certain threshold could risk losing privacy privileges, disclosure of payment information, seizure of other names in their portfolio, placement on a shared bad actor list etc.. Companies like eBay, Amazon and others have found some ways to deal with repeat bad actors. They are not full proof systems, but they help to some extent in stemming some bad activity. Are registrars and registries not capable of coming up with some measures as well to address known bad actors and their proxies. I would propose that there be discussions on this point.
*From:* mkaranicolas@gmail.com *Sent:* September 5, 2018 10:07 PM *To:* mitch@eff.org *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree with Mitch. It's completely impractical to expect registrars to collect additional fees from parties that lose URS or UDRP proceedings.
These systems are established to protect mark owners. It's only reasonable to expect the people who benefit from these processes to pay for them.
On Wed, Sep 5, 2018 at 8:21 PM Mitch Stoltz <mitch@eff.org> wrote:
Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration?
Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies.
Mitch Stoltz Senior Staff Attorney, EFF | 415-436-9333 x142https://www.eff.org/donate | https://act.eff.org/
On 9/5/18 2:55 PM, Paul Tattersfield wrote:
Georges I tend to agree....
If this is going to be considered further then I think we need to look at
1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and
2) if there any is correlation between the age of the domain and the number of complaints?
On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 2:39 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP.
My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome).
That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated.
Jonathan
On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
*From:* Jonathan Frost <jonathan@get.club> *Sent:* Wednesday, September 5, 2018 1:59 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 1:15 PM *To:* icann@leap.com *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
------------------------------
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
------------------------------
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing listgnso-rpm-wg@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I completely agree with the comments of Mr Stoltz!! This is a huge attempt at over reach. Paul Keating. Sent from my iPhone
On 6 Sep 2018, at 03:21, Mitch Stoltz <mitch@eff.org> wrote:
Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration?
Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies.
Mitch Stoltz Senior Staff Attorney, EFF | 415-436-9333 x142 https://www.eff.org/donate | https://act.eff.org/
On 9/5/18 2:55 PM, Paul Tattersfield wrote: Georges I tend to agree....
If this is going to be considered further then I think we need to look at
1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and
2) if there any is correlation between the age of the domain and the number of complaints?
On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote: Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 2:39 PM To: Doug@giga.law Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP.
My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome).
That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated.
Jonathan
On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
From: Jonathan Frost <jonathan@get.club> Sent: Wednesday, September 5, 2018 1:59 PM To: Doug@giga.law Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 1:15 PM To: icann@leap.com Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Disagree. Determining appropriate penalties for abuse and misuse of domain names and the DNS is entirely within the scope of ICANN’s powers and purview in order to ensure the stable and secure operation of the internet. Under Section 4.6(d) of its bylaws, ICANN is committed to ensuring that it will adequately address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection in the New gTLD program. Thus, determining whether a “loser pays” program in connection with URS or UDRP proceedings would further the interests of safety, stability and security is certainly within the scope of ICANN policy and this PDP’s review. Michael R. Graham From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, September 06, 2018 7:56 AM To: Mitch Stoltz <mitch@eff.org> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I completely agree with the comments of Mr Stoltz!! This is a huge attempt at over reach. Paul Keating. Sent from my iPhone On 6 Sep 2018, at 03:21, Mitch Stoltz <mitch@eff.org<mailto:mitch@eff.org>> wrote: Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration? Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies. Mitch Stoltz Senior Staff Attorney, EFF | 415-436-9333 x142 https://www.eff.org/donate | https://act.eff.org/ On 9/5/18 2:55 PM, Paul Tattersfield wrote: Georges I tend to agree.... If this is going to be considered further then I think we need to look at 1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and 2) if there any is correlation between the age of the domain and the number of complaints? On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors. From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 2:39 PM To: Doug@giga.law<mailto:Doug@giga.law> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP. My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome). That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated. Jonathan On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law<mailto:Doug@giga.law>> wrote: Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described. Doug From: Jonathan Frost <jonathan@get.club<mailto:jonathan@get.club>> Sent: Wednesday, September 5, 2018 1:59 PM To: Doug@giga.law<mailto:Doug@giga.law> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP). Jonathan On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law<mailto:Doug@giga.law>> wrote: What are some of the “ambiguities in complying with the rules”? Doug From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 1:15 PM To: icann@leap.com<mailto:icann@leap.com> Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee. The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day. Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too. Jonathan Frost _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I think that ICANN mandated arbitrators handing out dozens and dozens of monetary awards against registrants who may not even know that they were the subject of a UDRP would be outside of ICANN's remit. The enforcement of these awards would fall to local courts (which would cause a huge chilling effect on registrations in general). This chilling effect may benefit some commercial interests, but i don't know how it creates a more stable or secure Internet. On Tue, Sep 11, 2018 at 9:09 PM Michael Graham (ELCA) via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:
Disagree. Determining appropriate penalties for abuse and misuse of domain names and the DNS is entirely within the scope of ICANN’s powers and purview in order to ensure the stable and secure operation of the internet. Under Section 4.6(d) of its bylaws, ICANN is committed to ensuring that it will adequately address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection in the New gTLD program. Thus, determining whether a “loser pays” program in connection with URS or UDRP proceedings would further the interests of safety, stability and security is certainly within the scope of ICANN policy and this PDP’s review.
Michael R. Graham
*From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *Paul Keating *Sent:* Thursday, September 06, 2018 7:56 AM *To:* Mitch Stoltz <mitch@eff.org> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I completely agree with the comments of Mr Stoltz!!
This is a huge attempt at over reach.
Paul Keating.
Sent from my iPhone
On 6 Sep 2018, at 03:21, Mitch Stoltz <mitch@eff.org> wrote:
Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration?
Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies.
Mitch Stoltz
Senior Staff Attorney, EFF | 415-436-9333 x142
https://www.eff.org/donate | https://act.eff.org/
On 9/5/18 2:55 PM, Paul Tattersfield wrote:
Georges I tend to agree....
If this is going to be considered further then I think we need to look at
1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and
2) if there any is correlation between the age of the domain and the number of complaints?
On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 2:39 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP.
My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome).
That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated.
Jonathan
On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
*From:* Jonathan Frost <jonathan@get.club> *Sent:* Wednesday, September 5, 2018 1:59 PM *To:* Doug@giga.law *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
*From:* gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> *On Behalf Of *Jonathan Frost *Sent:* Wednesday, September 5, 2018 1:15 PM *To:* icann@leap.com *Cc:* gnso-rpm-wg <gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
------------------------------
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ------------------------------
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg@icann.org
https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi Michael, How would you overcome the issue of a cybersquatter putting Expedia's name into the "WHOIS" as the registrant (i.e. identity theft), and the ensuing damage when "Expedia" is determined to be a 'cybersquatter' by a panel? I brought this up in the thread at: https://mm.icann.org/pipermail/gnso-rpm-wg/2018-September/003291.html Conceivably (depending on any policies that are adopted for penalties), Expedia might then be prevented from making any new registrations, being blacklisted, having to put up a security deposit for new registrations, etc., all of which would be disruptive to your company. While I'm very sympathetic to your concern (I too want penalties for the bad actors), I think this and similar problems would need to be solved first, before ICANN implements such penalties. The courts would be the best place for that now, given they have better tools at their disposal (for ensuring proper service of a complaint, multiple levels of appeals, subpoena powers, etc.). [And I've put my money where my mouth is on this issue -- in the only domain dispute involving my company under the UDRP, I instead went to court and won costs against the other side.] Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Sep 11, 2018 at 9:08 PM, Michael Graham (ELCA) via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
Disagree. Determining appropriate penalties for abuse and misuse of domain names and the DNS is entirely within the scope of ICANN’s powers and purview in order to ensure the stable and secure operation of the internet. Under Section 4.6(d) of its bylaws, ICANN is committed to ensuring that it will adequately address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection in the New gTLD program. Thus, determining whether a “loser pays” program in connection with URS or UDRP proceedings would further the interests of safety, stability and security is certainly within the scope of ICANN policy and this PDP’s review.
Michael R. Graham
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, September 06, 2018 7:56 AM To: Mitch Stoltz <mitch@eff.org> Cc: gnso-rpm-wg@icann.org
Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I completely agree with the comments of Mr Stoltz!!
This is a huge attempt at over reach.
Paul Keating.
Sent from my iPhone
On 6 Sep 2018, at 03:21, Mitch Stoltz <mitch@eff.org> wrote:
Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration?
Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies.
Mitch Stoltz
Senior Staff Attorney, EFF | 415-436-9333 x142
https://www.eff.org/donate | https://act.eff.org/
On 9/5/18 2:55 PM, Paul Tattersfield wrote:
Georges I tend to agree....
If this is going to be considered further then I think we need to look at
1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and
2) if there any is correlation between the age of the domain and the number of complaints?
On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 2:39 PM To: Doug@giga.law Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP.
My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome).
That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated.
Jonathan
On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
From: Jonathan Frost <jonathan@get.club> Sent: Wednesday, September 5, 2018 1:59 PM To: Doug@giga.law Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 1:15 PM To: icann@leap.com Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
________________________________
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
________________________________
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg@icann.org
https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Seems a potential issue that would arise regardless of the proposed penalties and create just as much havoc. Michael R. -----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Wednesday, September 12, 2018 4:02 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs Hi Michael, How would you overcome the issue of a cybersquatter putting Expedia's name into the "WHOIS" as the registrant (i.e. identity theft), and the ensuing damage when "Expedia" is determined to be a 'cybersquatter' by a panel? I brought this up in the thread at: https://mm.icann.org/pipermail/gnso-rpm-wg/2018-September/003291.html Conceivably (depending on any policies that are adopted for penalties), Expedia might then be prevented from making any new registrations, being blacklisted, having to put up a security deposit for new registrations, etc., all of which would be disruptive to your company. While I'm very sympathetic to your concern (I too want penalties for the bad actors), I think this and similar problems would need to be solved first, before ICANN implements such penalties. The courts would be the best place for that now, given they have better tools at their disposal (for ensuring proper service of a complaint, multiple levels of appeals, subpoena powers, etc.). [And I've put my money where my mouth is on this issue -- in the only domain dispute involving my company under the UDRP, I instead went to court and won costs against the other side.] Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Sep 11, 2018 at 9:08 PM, Michael Graham (ELCA) via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
Disagree. Determining appropriate penalties for abuse and misuse of domain names and the DNS is entirely within the scope of ICANN’s powers and purview in order to ensure the stable and secure operation of the internet. Under Section 4.6(d) of its bylaws, ICANN is committed to ensuring that it will adequately address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection in the New gTLD program. Thus, determining whether a “loser pays” program in connection with URS or UDRP proceedings would further the interests of safety, stability and security is certainly within the scope of ICANN policy and this PDP’s review.
Michael R. Graham
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, September 06, 2018 7:56 AM To: Mitch Stoltz <mitch@eff.org> Cc: gnso-rpm-wg@icann.org
Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I completely agree with the comments of Mr Stoltz!!
This is a huge attempt at over reach.
Paul Keating.
Sent from my iPhone
On 6 Sep 2018, at 03:21, Mitch Stoltz <mitch@eff.org> wrote:
Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration?
Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies.
Mitch Stoltz
Senior Staff Attorney, EFF | 415-436-9333 x142
https://www.eff.org/donate | https://act.eff.org/
On 9/5/18 2:55 PM, Paul Tattersfield wrote:
Georges I tend to agree....
If this is going to be considered further then I think we need to look at
1) if some registrars are suffering a disproportionate amount of costs in proportion to the total number of domains they have under management? and
2) if there any is correlation between the age of the domain and the number of complaints?
On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Will this not raise the cost of URS and UDRP proceedings. If so, who pays that? The problem is that what is being proposed is just another cost shifting. The basic cost issue arises from the fact that there exists a sub-group of bad actor domain name registrants who register infringing domain names at a fairly low cost and use such in often nefarious ways (including in deceiving and defrauding consumers), which then forces brand owners to expend large amounts of money to enforce and protect their rights (staff time, investigator and attorney’s fees, filing fees, responding at times to government agencies, post URS and UDRP fees to secure a suspension or a transfer of a domain name etc.). All of this is further complicated by the GDRP, which just adds more costs. So the question in regards to registrar and registry costs ignores the question about the brand owner costs? Typically the view espoused is that enforcement is part of the brand owners cost of doing business, so the question is why isn’t this cost to registrar and registries not the cost of doing business. Registrars and registries, after all, basically promote the registration (sale) of domain names for profit (registration of domain names is the service/ product being sold, just like a brand owner sells a product or service). Registrar and registries are not akin to a provider such as WIPO or NAF. If we start going down the path of costs, what about the added costs that result when registrars, for example, promote the sales of infringing domain names or unnecessarily complicate transfers of domains names after a successful UDRP, or otherwise act in other ways that are prejudicial to the brand owner constituency. Perhaps what should be looked at in a more focused way is the sub-group of domain name registrants that engage in actual and clear cybersquatting and then figuring out some meaningful penalty that can compensate everyone who bears a cost (i.e., brand owners, providers, registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 2:39 PM To: Doug@giga.law Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that it's not an issue that will arise with frequency, however these types of issues do arise, they do create costs for the Registries/Registrars. In fact, like George pointed out, it arises when a TM Holder prevails in URS, then decides that it actually wants possession of the domain, and subsequently files a UDRP.
My main point was that, in addition to the day to day time commitments, there are unpredictable legal costs associated with the administration of URS/UDRP (in part because rule sets laws or contracts cannot cover all scenarios without being inefficiently burdensome).
That's why it makes sense for there to be a cost-recovery mechanism, so that the Registries/Registrars can be compensated costs related to administration overhead in the same way that NAF/WIPO are compensated.
Jonathan
On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug@giga.law> wrote:
Thanks, Jonathan, this seems like a very discrete issue that is unlikely to arise with any frequency. (Actually, now that I reread your email, I’m not even sure what a “lifetime lock” is in the context of a URS proceeding – can you explain?) I’d love to know of any real-life disputes that fit the situation you’ve described.
Doug
From: Jonathan Frost <jonathan@get.club> Sent: Wednesday, September 5, 2018 1:59 PM To: Doug@giga.law Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
For instance, there is ambiguity about what action a registry should take when a domain which is already the subject of a URS judgement & lifetime lock receives a UDPR judgement that requires unlock & transfer. The URS rules don't account for this situation, and by their letter, require that the domain not be unlocked. However, the registries are also required to comply with consensus policies (such as UDRP).
Jonathan
On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug@giga.law> wrote:
What are some of the “ambiguities in complying with the rules”?
Doug
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Jonathan Frost Sent: Wednesday, September 5, 2018 1:15 PM To: icann@leap.com Cc: gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs
I agree that Registries and Registrars need to be able to recover the cost of administering the URS/UDRPs, as part of the filing fee.
The costs that the Registries/Registrars bear actually goes beyond what Reg has said. There are situations where we have to go to outside counsel or even ICANN to resolve ambiguities in complying with the rules. Additionally, the 24 hour action requirement on locking a domain that has received a URS complaint actually increases the resources that have to be dedicated, beyond the actual number of minutes per complaint, because compliance personal has to allocate/reserve a certain time per day to perform the tasks, even if no complaint is received that day.
Just like the arbitration administrators charge a cost recovery fee for administration as part of the filing fee, it's just common since that the Registries/Registrars would too.
Jonathan Frost
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
________________________________
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
________________________________
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg@icann.org
https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi folks, On Wed, Sep 5, 2018 at 8:21 PM, Mitch Stoltz <mitch@eff.org> wrote:
Monetary "penalties" on registrants, and any recovery of costs beyond the arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN policy. Those are matters for national courts. Aside from being a vast expansion of these dispute resolution policies, what Georges proposes is unworkable in practice. How would "penalties" and second- and third-order costs be collected from registrants? Would registrars have to sue their customers to collect these funds on behalf of trademark holders? Or would every registrant have to submit to potentially unbounded contractual liability to unknown third parties as a condition of registration?
Establishing a workable fee structure for URS (and UDRP) arbitrations is one thing. Expanding these policies to become systems for punishment of bad actors and broadly defined cost recovery is quite another—that's the domain of courts and trademark law, not ICANN policies.
Just to go back to Mitch's earlier post, there'd be some absurdity to ICANN prioritizing penalties for 2nd-level domain registrants, when top-level domains can be owned by companies who have plead guilty to criminal conduct: http://www.circleid.com/posts/20150520_should_barclays_lose_the_barclays_top... https://gtldresult.icann.org/applicationstatus/applicationdetails/1057 Let's properly rank things in order of importance, according to the severity of the crime involved. We'll spend millions of dollars in volunteer time pursuing petty crime prevention, yet do nothing when a guilty company such as Barclays owns an entire TLD? Where's Barclay's "penalty" from ICANN, or the reform to prevent bad actors like that financial institution from owning an entire TLD? Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Hi Georges, On Wed, Sep 5, 2018 at 3:31 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
Suppose someone buys a can of spray paint, and uses it to put up some offensive graffiti, etc. Are you suggesting the retailer that sold the paint (Walmart, etc.) should contribute to the cost of removing that graffiti? Or perhaps the paint manufacturer should chip in? I'd really like to know. What is so "special" about domain names, that we treat them differently than other kinds of crime? Courts exist, yet some seek "special" extra-judicial procedures despite not really demonstrating that they're actually special. What is "fair and appropriate" has been determined in courts and laws over thousands of years. A couple of weeks ago, Microsoft was able to take down 6 domains, and used the courts to do so: https://blogs.microsoft.com/on-the-issues/2018/08/20/we-are-taking-new-steps... No URS or UDRP was required. If they can do this, why can't everyone else? Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
All it takes is this: Microsoft says its DCU is made up of an international group of attorneys, investigators, data scientists, engineers, analysts and business professionals all focused on “protecting people, organizations and our cloud against cybercriminals. We disrupt cybercrime through the innovative application of technology, forensics, law and partnerships.” It seems clear to me that MS took this approach because a UDRP would take too long and would not be effective against a Russian criminal hacker. Getting an ex parte seizure order is not an easy thing and only appropriate for particular circumstances, fundamentally different from those that are appropriate for UDRP/ URS proceedings. Best regards, Greg On Wed, Sep 5, 2018 at 10:29 PM George Kirikos <icann@leap.com> wrote:
Hi Georges,
On Wed, Sep 5, 2018 at 3:31 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
registrars and registrants). It just seems that cost shifting arguments miss the point that someone can waltz in, register an infringing domain name for often less than $20 USD and create significantly higher costs for a number of parties that in the aggregate are quite significant. My point here is that yes there are costs, but they should not fall disproportionately on one constituency. So if we start going down this path, then we should look at everyone’s costs and discuss what is fair and appropriate, as well as what penalties should be placed on bad actors.
Suppose someone buys a can of spray paint, and uses it to put up some offensive graffiti, etc. Are you suggesting the retailer that sold the paint (Walmart, etc.) should contribute to the cost of removing that graffiti? Or perhaps the paint manufacturer should chip in? I'd really like to know.
What is so "special" about domain names, that we treat them differently than other kinds of crime? Courts exist, yet some seek "special" extra-judicial procedures despite not really demonstrating that they're actually special.
What is "fair and appropriate" has been determined in courts and laws over thousands of years.
A couple of weeks ago, Microsoft was able to take down 6 domains, and used the courts to do so:
https://blogs.microsoft.com/on-the-issues/2018/08/20/we-are-taking-new-steps...
No URS or UDRP was required. If they can do this, why can't everyone else?
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
participants (11)
-
Doug Isenberg -
George Kirikos -
Greg Shatan -
Jonathan Frost -
Michael Graham (ELCA) -
Michael Karanicolas -
Mitch Stoltz -
Nahitchevansky, Georges -
Paul Keating -
Paul Tattersfield -
Susan Payne