[CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP

Mathieu Weill mathieu.weill at afnic.fr
Wed Mar 4 10:09:54 UTC 2015


Dear Erika,

This kind of insights would be very valuable indeed ! Can I suggest you 
liaise with Becky as WP2 rapporteur ? Enhancing the review / redress 
processes is very high on Becky's group agenda right now so she can 
certainly use your help and insights.

Best
Mathieu

Le 04/03/2015 10:54, Erika Mann a écrit :
> Avri, Colleagues - Happy to develop a first draft proposal for input/ 
> review based on WTO processes, taken into consideration the ICANN 
> specific obligations and values.
>
> Can do a first draft next week.
>
> Erika
>
> On Wed, Mar 4, 2015 at 9:44 AM, Avri Doria <avri at acm.org 
> <mailto:avri at acm.org>> wrote:
>
>     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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>>
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-- 
*****************************
Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
mathieu.weill at afnic.fr
Twitter : @mathieuweill
*****************************

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