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

Wed Mar 4 19:37:38 UTC 2015

Exactly Jacob. Thanks for looking into this.

Erika

On Wed, Mar 4, 2015 at 8:02 PM, Jacob Malthouse <jacob at bigroom.ca> wrote:

> Paragraph 129 (attached) is a good reminder that the bottom-up process is
> itself an accountability mechanism, where many often disparate parties have
> the opportunity to come together and agree on, or disagree with, something.
> Any appeals system needs to sit within that unique ICANN context.
>
> [image: Inline images 1]
>
>
>
> Jacob Malthouse
> Co-founder & Director, Big Room Inc.
> 778-960-6527
> http://www.bigroom.ca/
>
> On 4 March 2015 at 05:36, Erika Mann <erika at erikamann.com> wrote:
>
>> 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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>>>>>
>>>>>
>>>>>
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>>>>
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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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