[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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