<div dir="ltr">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. <div><br></div><div>Can do a first draft next week.</div><div><br></div><div>Erika</div></div><div class="gmail_extra"><br><div class="gmail_quote">On Wed, Mar 4, 2015 at 9:44 AM, Avri Doria <span dir="ltr"><<a href="mailto:avri@acm.org" target="_blank">avri@acm.org</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
<div bgcolor="#FFFFFF" text="#330033">
Hi,<br>
<br>
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.<span class="HOEnZb"><font color="#888888"><br>
<br>
avri</font></span><div><div class="h5"><br>
<br>
<br>
<div>On 04-Mar-15 08:54, Erika Mann wrote:<br>
</div>
<blockquote type="cite">
<div dir="ltr">
<div><span style="font-size:12.8000001907349px">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. </span></div>
<div><span style="font-size:12.8000001907349px">Erika</span></div>
<div><span style="font-size:12.8000001907349px"><br>
</span></div>
<div><span style="font-size:12.8000001907349px"><br>
</span></div>
<span style="background-color:rgb(255,242,204)"><span style="font-size:12.8000001907349px">(From Chris LaHatte)
"Accountability and a general</span><br style="font-size:12.8000001907349px">
<span style="font-size:12.8000001907349px">sense is already
being fully discussed. However the more difficult issue is</span><br style="font-size:12.8000001907349px">
<span style="font-size:12.8000001907349px">designing a dispute
resolution system which has the flexibility to discuss</span><br style="font-size:12.8000001907349px">
<span style="font-size:12.8000001907349px">the issues
graphically illustrated by this case. Do we want to set up a</span><br style="font-size:12.8000001907349px">
<span style="font-size:12.8000001907349px">quasi-judicial
system within ICANN with a level of review or appeal? Should</span><br style="font-size:12.8000001907349px">
<span style="font-size:12.8000001907349px">we try and
harmonise all of the existing review systems so that there
is a</span><br style="font-size:12.8000001907349px">
<span style="font-size:12.8000001907349px">common procedure
and a review/appeal level?" </span></span><br>
<div class="gmail_extra"><br>
<div class="gmail_quote">On Wed, Mar 4, 2015 at 7:54 AM, Chris
Disspain <span dir="ltr"><<a href="mailto:ceo@auda.org.au" target="_blank">ceo@auda.org.au</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
<div style="word-wrap:break-word"><span style="font-family:'Verdana';font-size:13px;color:rgb(102,102,102)">Hi
Bruce,
<div><br>
</div>
<div><span>
<blockquote type="cite">From my understanding - <span style="background-color:rgb(255,242,204)">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. </span> 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.</blockquote>
<div><br>
</div>
</span>Absolutely. And if <span style="background-color:rgb(255,242,204)">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.</span> Thus, I’m unsure that the real issue
in this case can be solved by the work of the CCWG. </div>
<div><br>
</div>
<div><span>
<blockquote type="cite">I think we are all keen to
see the processes and appeal mechanisms
improved. </blockquote>
<div><br>
</div>
</span>100% agree. And that is work that I think the
CCWG can do. <br>
<div><br>
</div>
<div>
<div>
<p><br>
</p>
<p><br>
</p>
<p>Cheers,</p>
<p><br>
</p>
<p>Chris</p>
</div>
<div>
<div>
<br>
<div>
<div>On 4 Mar 2015, at 17:42 , Bruce Tonkin
<<a href="mailto:Bruce.Tonkin@melbourneit.com.au" target="_blank">Bruce.Tonkin@melbourneit.com.au</a>>
wrote:</div>
<br>
<blockquote type="cite">Hello Chris,<br>
<br>
<br>
<blockquote type="cite">
<blockquote type="cite"> 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? <br>
</blockquote>
</blockquote>
<br>
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.<br>
<br>
I could see how this could be built into a
future new gTLD process.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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. <br>
<br>
Regards,<br>
Bruce Tonkin<br>
<br>
<br>
<br>
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