Dear IRT,

With many thanks to Beril, Mia and Brian for working so quickly to get this to us before ICANN85, please see IGO feedback on the UDRP drafts shared on our last call. We will discuss this during our meeting on Saturday, but keen to hear the IRT’s thoughts on list in the meantime.

Best,

Peter

IGO FEEDBACK ON UDRP DRAFT UPDATES V5.0:

“In relation to the recent changes, we have some concerns about the broadened scope. While we agree with the principle that neither the purpose of the EPDP nor of the IRT is to restrict the parties’ ability to initiate legal proceedings against one another, whether before a court or through arbitration, prior to/during an ongoing UDRP proceeding, ICANN’s rules should not address any details on such parallel legal proceedings.

We are mindful that the sole purpose of the EPDP and this IRT is to introduce an arbitral proceeding available to the parties for the purpose of challenging a UDRP/URS decision in cases involving IGO Complainants, who are no longer required to submit themselves to the Mutual Jurisdiction, which was the main problem. We are happy to clarify explicitly in the Rules and the Policy that this mechanism does not affect or limit either party’s right to seek legal recourse before the courts or through arbitration concerning the domain name. However, we should not go into details of such parallel processes that are not linked to the administrative proceeding.

It is too short notice to provide detailed comments on the drafting of the Rules and the Policy for us, but here are the main points that we would like to raise in light of the above concern:

For the Rules:

Definition of Arbitral Proceeding – We suggest to revert back to the original version to only say “challenge a determination issued in an administrative proceeding under the Policy that was initiated by an IGO Complainant”

Under 4(c) – In relation to the recent addition of “the Respondent may elect to submit the dispute for resolution via binding arbitration by initiating an Arbitral Proceeding or,” we propose to delete it because this is covered under sub-point 3 of the same provision.

Re. Article 20, in light of the above, it should be limited solely to the arbitration mechanism for challenging a UDRP decision. All references to arbitration that may be initiated while a UDRP proceeding is ongoing should therefore be removed from its scope. To reiterate, we do not object to the principle that both parties retain the right to initiate court proceedings or arbitration relating to the domain name before or during a pending UDRP proceeding, which was already the case. However, the purpose of the EPDP and the IRT is not to establish rules governing those parallel processes; the purpose is to introduce arbitration for challenging a UDRP/URS decision (without affecting the mechanisms that have already been available). Including broader language (i.e. references to 'resolv[ing] the claims raised' instead of referring to the outcome/decision of the administrative proceeding) risks creating the impression that an additional right is being granted to the Respondent beyond what already exists.

To address the principle that the parties’ ability to initiate legal proceedings against one another, whether before a court or through arbitration, prior to/while a UDRP proceeding is pending is not impaired, we propose to change article 18 Effect of Court Proceedings to Effect of Legal Proceedings and modify the sub-paragraph (a) as follows (changes in red): In the event of any legal proceedings initiated prior to or during an administrative proceeding in respect of a domain-name dispute that is the subject of the complaint, either before a court or via arbitration, the Panel shall have the discretion to decide whether to suspend or terminate the administrative proceeding, or to proceed to a decision.

For the Policy:

We propose to align paragraph 10 of the Policy with the Rules with respect to the definition pf the Arbitral Proceeding. We propose to revert back to the original version of the first sentence so that it reads as follows: “"You may elect to initiate a binding arbitral proceeding before an Arbitral Panel (an “Arbitral Proceeding”) to challenge the outcome of an administrative proceeding under this Policy initiated by an IGO Complainant”.

With respect to sub-paragraph (g), we couldn’t understand why there is a difference timeline for the implementation of arbitral decision for IGOs and the Respondent.

With respect to 4k(ii), in line with the above explanations, we can introduce the following change in red: “In proceedings brought by an IGO Complainant, the mandatory administrative proceeding requirements set forth in Paragraph 4 [protect.checkpoint.com] shall not prevent either you or the IGO Complainant from submitting the dispute to a court of competent jurisdiction or arbitration for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded.” Hopefully, this would remove any doubts as to whether the new mechanism excludes initiating arbitration before/during a UDRP proceeding.

P.S.

Document Links

UDRP V5.0: https://docs.google.com/document/d/15sgAY3eEJwyqOka-p-o4B6ESvD5VOApaJgiN396xRGg/edit?tab=t.0#heading=h.i8soj2yx4de

UDRP Rules V5.0: https://docs.google.com/document/d/1SApPdhA4oYYxtD7XjX6Fb8FL5SWqZTe72zCK51PV_MY/edit?tab=t.0#heading=h.vudxxqt18ge1

Peter Eakin

Policy Research Specialist, Policy Research & Stakeholder Programs

Internet Corporation for Assigned Names and Numbers (ICANN)

Tel: + 32 493 547 913

Office: 6 Rond Point Schuman, Bt. 1, Brussels B-1040, Belgium