[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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