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

Wed Mar 4 13:36:36 UTC 2015

Yes Mathieu, I will talk to Beck. I had a chat with her already but need to
talk to her again.

Thanks,
Erika

+32 498 12 13 54

On Wed, Mar 4, 2015 at 11:09 AM, Mathieu Weill <mathieu.weill at afnic.fr>
wrote:

>  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> 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> 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>
>>> 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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> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06mathieu.weill at afnic.fr
> Twitter : @mathieuweill
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