[CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP
Avri Doria
avri at acm.org
Wed Mar 4 08:44:15 UTC 2015
Hi,
I think this is an excellent idea and have heard it suggested before.
Might be good to have someone lay out the features of the procedure.
avri
On 04-Mar-15 08:54, Erika Mann wrote:
> Reviewing the comments made in this email thread, I refer in
> particular to Chris LaHatte's comment, posted below. I think he is
> right, we need to establish a dispute resolution system that values
> each case based on its individual parameters - keeping international
> law parameters and DNS specific legal parameters into consideration.
> My idea always was to 'copy' the WTO dispute settlement procedure. It
> is sufficient flexible, keeps involved complainants and third party
> interests in balance and it must respect global public interest
> parameters as well. I have 15 years experience in this area, happy to
> help.
> Erika
>
>
> (From Chris LaHatte) "Accountability and a general
> sense is already being fully discussed. However the more difficult
> issue is
> designing a dispute resolution system which has the flexibility to discuss
> the issues graphically illustrated by this case. Do we want to set up a
> quasi-judicial system within ICANN with a level of review or appeal?
> Should
> we try and harmonise all of the existing review systems so that there is a
> common procedure and a review/appeal level?"
>
> On Wed, Mar 4, 2015 at 7:54 AM, Chris Disspain <ceo at auda.org.au
> <mailto:ceo at auda.org.au>> wrote:
>
> Hi Bruce,
>
>> From my understanding - the complainant basically wants the
>> decision from the string similarity panel that found .hotels and
>> .hoteis to be similar to be reviewed again on its merits.
>> Neither the Reconsideration Process or IRP is currently
>> designed to do this. I assume that the applicants for .hotels
>> and .hoteis would want the ability to make submissions and
>> perhaps both would agree that there is not a risk of consumer
>> confusion because the two strings address different markets
>> (English speaking versus Portuguese speaking etc). The
>> applicants could even agree on a process to avoid confusion
>> between the two strings. e.g. some mechanism that would ensure
>> that Hilton.hotels and Hilton.hoteis were managed by the same
>> registrant - but have content in different languages.
>
> Absolutely. And if you’re correct then the review would be of the
> merits of an independent panel decision. Whilst such a review
> mechanism seems equitable to me I think the key point is that this
> would need to be built in to a future new gTLD process, presumably
> arising from policy review and recommendations of the gNSO.
> Thus, I’m unsure that the real issue in this case can be solved by
> the work of the CCWG.
>
>> I think we are all keen to see the processes and appeal
>> mechanisms improved.
>
> 100% agree. And that is work that I think the CCWG can do.
>
>
>
> Cheers,
>
>
> Chris
>
>
> On 4 Mar 2015, at 17:42 , Bruce Tonkin
> <Bruce.Tonkin at melbourneit.com.au
> <mailto:Bruce.Tonkin at melbourneit.com.au>> wrote:
>
>> Hello Chris,
>>
>>
>>>> And, as a separate question, in respect to your comments below
>>>> about mechanisms that go directly to the merits of a decision,
>>>> what decision would that apply to in this case?
>>
>> From my understanding - the complainant basically wants the
>> decision from the string similarity panel that found .hotels and
>> .hoteis to be similar to be reviewed again on its merits.
>> Neither the Reconsideration Process or IRP is currently
>> designed to do this. I assume that the applicants for .hotels
>> and .hoteis would want the ability to make submissions and
>> perhaps both would agree that there is not a risk of consumer
>> confusion because the two strings address different markets
>> (English speaking versus Portuguese speaking etc). The
>> applicants could even agree on a process to avoid confusion
>> between the two strings. e.g. some mechanism that would ensure
>> that Hilton.hotels and Hilton.hoteis were managed by the same
>> registrant - but have content in different languages.
>>
>> I could see how this could be built into a future new gTLD process.
>>
>> e.g the String Similarity panel could first identify strings that
>> are potentially confusing and should be in a contention set -
>> e.g. .hotels and .hoteis. Then a separate panel could be
>> convened (perhaps with three panellists) to consider the case on
>> its merits taking submissions from both parties and any other
>> interested members of the global public.
>>
>> Another common scenario we have seen is where third parties (ie
>> non-applicants, and not ccTLD managers or gTLD operators) have
>> disputed that two strings should have been found as similar but
>> were not - e.g. .car and .cars. Again such a situation could
>> perhaps be appealed to a larger panel to consider on its merits -
>> I would assume those bringing the dispute would have some
>> standing to raise the issue - e.g. perhaps the Car Industry etc.
>> - on the basis that they could be materially affected by having
>> the two strings.
>>
>> I think it is important to remember that this was a major program
>> that was rolled out and there are lots of learnings. Part of
>> being accountable is to address those short-comings in the next
>> release of the process. We have been very careful about
>> changing the rules of the process while it is underway. It is
>> not that dissimilar to planning processes for building approvals
>> etc. When a new area of a city is released for development -
>> the rules may need to be changed to prevent undesirable
>> developments that were not originally foreseen (e.g. buildings
>> too tall, or buildings not fireproof, earthquake proof etc).
>> However the changes need to be made through a community
>> consultation process - rather than the Board imposing new or
>> changed rules along the way.
>>
>> I think we are all keen to see the processes and appeal
>> mechanisms improved. I have personally spent many hours
>> reviewing reconsideration requests. As a general rule for
>> every loser in the panel and dispute process - this has resulted
>> in reconsideration as the cost to reconsider versus the cost to
>> apply for a new gTLD was very low. In quite a few of those you
>> could see fairly clearly that the right decision had been made on
>> its merits, and in other cases I could see how a different panel
>> might make a different decision on its merits. Most of the
>> reconsideration requests spend most of their submission arguing
>> the merits of their original case - and few have been able to
>> identify errors in the process.
>>
>> Regards,
>> Bruce Tonkin
>>
>>
>>
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