[bc-gnso] For review / approval by 28-Oct: BC Comment on Accreditation of UDRP providers

[Phil Corwin]

Berry:

Thanks for your support of the overall position that UDRP providers should be under standard contract with ICANN.

The RAPWG's Initial Report statement on this is as follows:

The RAPWG recommends the initiation of a
Policy Development Process by requesting an
Issues Report to investigate the current state
of the UDRP, and consider revisions to address
cybersquatting if appropriate. This effort
should consider:
• How the UDRP has addressed the
problem of cybersquatting to date,
and any insufficiencies/inequalities
associated with the process.
• Whether the definition of
cybersquatting inherent within the
existing UDRP language needs to be
reviewed or updated.

Clearly, the second point that the Issues Report would be asked to address -- the definition of cybersquatting -- is separate from the question of whether there should be a standard UDRP provider contract and what matters it should address (although I believe that some concerns that both complainants and have registrants have with administration of the current UDRP could be addressed contractually). As we are both participating in the RAPIMP discussions I concur with your observation that any UDRP PDP may require multiple PDPs; so far as prioritization, my view would be that establishing a standard contract should come first as that is the only means of assuring consistent implementation of any other UDRP reforms.

Taking that separate PDPs/contract first approach would also be consistent with the last paragraph of the draft BC position, which states:

In closing, we note that this issue of whether UDRP providers should be under standard contract with ICANN is almost entirely separable from the question of whether the UDRP evaluation standards for determining the existence of cybersquatting should be reformed.  There is no need to debate the substantive elements of the UDRP in order to address the fundamental issue of whether UDRP providers should be under standardized contract.

So, in conclusion, I would be fine with referencing the implementation of the RAPWG recommendation on UDRP reform so long as it is noted that establishment of a standard contract should be first priority. developing that contract will be a major task in itself, and mixing it with a debate on the elements of cybersquatting that must be proved to prevail in a UDRP filing will needlessly complicate the discussion.

Philip S. Corwin
Partner
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004
202-347-6875 (office)
202-347-6876 (fax)
202-255-6172 (cell)
"Luck is the residue of design." -- Branch Rickey
________________________________________
From: owner-bc-gnso at icann.org [owner-bc-gnso at icann.org] on behalf of berrycobb at infinityportals.com [berrycobb at infinityportals.com]
Sent: Sunday, October 17, 2010 9:06 PM
To: 'bc - GNSO list'
Subject: RE: [bc-gnso] For review / approval by 28-Oct:  BC Comment on  Accreditation of UDRP providers

First let me begin by supporting the position started here.  I also
agree with Phil’s statement that this issue is separate from the issue
of UDRP evaluation standards, etc.  But, while separate issues,
perhaps the issue of accreditation and/or standard UDRP Provider based
contracts can be reviewed via the Registration Abuse Policies (RAP)
Working Group recommendation of a UDRP review.  Presently, there is a
RAP Implementation team reviewing each of the RAP recommendations, one
of which where the RAP WG reached unanimous consensus in review of
UDRP.  That recommendation requests for an Issues Report to initiate
and launch the PDP process.  The RAP IMP team will prioritize the
recommendations for implementation and hopes to submit its efforts
back to the GNSO council by close of October.  At this time, we have
not agreed on recommendation prioritization, but there does seem to be
agreement that any UDRP Review PDP may require multiple PDPs, similar
deployment to IRTP.

Secondly, I attached an updated version of the BC Position Statement,
per Marilyn’s comment to use a style template on a previous position
statement.  I took the liberty to update the template using the BC’s
latest logo and style created by Chris Chaplow.  I did not have the
soft files of the images, so this template could be improved some.
Let me know your thoughts.  I DID NOT include Marilyn’s edits in this
version of the draft.  Steve, can you ensure they are incorporated?

Thank you.  B


Berry Cobb
Infinity Portals LLC
berrycobb at infinityportals.com
http://infinityportals.com
720.839.5735

From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On
Behalf Of Marilyn Cade
Sent: Thursday, October 14, 2010 8:10 PM
To: Steve Delbianco; bc - GNSO list
Subject: RE: [bc-gnso] For review / approval by 28-Oct: BC Comment on
Accreditation of UDRP providers

These comments are offered as a member of the BC, in my private capacity.

First, I think that we need to continue to develop our BC comments in
a positive tone, with a consistent 'look and feel', and with a view to
leadership.
Secondly, I provided some suggestions to the authors. However, I am
not wedded to my language, but I am wedded to supporting that the BC's
comments should show leadership.
I know that was the intent, and hope that my suggestions might
contribute to that approach.

It is great to see such rapid turn around to get something out to
members for consideration.

Thanks, Phil, and Steve.
I do have a question. Would you expect to freeze the document at some
point, so that mmbers can respond to a final version?

Marilyn Cade

________________________________________
From: sdelbianco at netchoice.org
To: bc-gnso at icann.org
Subject: [bc-gnso] For review / approval by 28-Oct: BC Comment on
Accreditation of UDRP providers
Date: Fri, 15 Oct 2010 02:03:00 +0000

This draft comment is being circulated today (14-Oct) so that BC
members will have 14 days to review, revise, and consider approval
before the ICANN deadline of 28-Oct-2010.

The attached comment was drafted by Phil Corwin and was polished for
submission by Mike Rodenbaugh.  Phil’s original note is shown at the
bottom of this email, and contains some contextual material that may
be helpful in your consideration of this draft.

This draft comment is in response to ICANN’s proposal to recognize a
new domain name dispute provider.   For background on this proposal,
see below, or at http://icann.org/en/public-comment/#acdr-proposal

Explanation/Background: ICANN has received a proposal from the Arab
Center for Domain Name Dispute Resolution (ACDR) to be recognized as
one of the official dispute resolution providers under the UDRP. The
proposal was submitted pursuant to the process specified at
http://www.icann.org/en/dndr/udrp/provider-approval-process.htm.

The ACDR is jointly established by the Arab Intellectual Property
Mediation and Arbitration Society (AIPMAS) and the Arab Society for
Intellectual Property (ASIP), with headquarters in Amman, Jordan and
additional offices in other Arab Countries. Both the AIPMAS
(established in 1987) and ASIP promote the activities of the Arab
Center of Mediation and Arbitration, established in 2003, active in
resolving conflicts related to intellectual property through
international arbitrators. If approved, the ACDR would be the first
Approved UDRP Dispute Resolution Service Provider headquartered in an
Arab state.

At its 5 August 2010 meeting, the Board approved staff’s
recommendation to publish the ACDR proposal for a public comment for a
period of not less than 30 days.

Upon completion of the public comment period, ICANN staff will analyze
the comments received and evaluate further recommendations to the
Board on proceeding with the ACDR proposal.

The proposal and relevant annexures are at:
ACDR Proposal [PDF, 156 KB]
Annex 1 – ACDR Initial List of Panelists [PDF, 176 KB]
Annex 2 – ACDR Screening Process [PDF, 8 KB]
Annex 3 – ACDR Supplemental Rules [PDF, 100 KB]


----- Forwarded Message
From: Phil Corwin <pcorwin at butera-andrews.com>
Date: Thu, 14 Oct 2010 14:54:47 +0000
To: Marilyn Cade <marilynscade at hotmail.com>, bcprivate
<bcprivate at bizconst.org>

Thanks to you, Steve, Sarah, Ron, Mikey, Chris and everyone else who
put in place and participated in Tuesday's meeting of the Business
Constituency. It was very worthwhile and hopefully will be an annual
event.

During the policy portion of the meeting I noted that there is a
pending request for comment regarding the application of the Arab
Center for Domain Name Dispute Resolution (ACDR) to become a certified
UDRP arbitration provider. ACDR is located in Amman, Jordan; The
comment period closes on October 28th.

Steve invited me to provide further details, and this e-mail takes up
that offer. I don't yet have an ICA comment letter to share that has
been approved by the ICA Board, but I can provide this background --

I noted that the ICA intended to oppose approval of this application
at this time on the grounds that no new UDRP providers should be
accredited until ICANN implements a standard contract with all
accredited providers or finds some other mechanism for establishing
uniform rules and procedures and flexible means of delineating and
enforcing arbitration provider responsibilities.

Let me make clear that ICA's opposition will not be based in any way
on the fact that this particular applicant is "Arab" and is located in
the developing world. There were recent reports that an Indian
organization is contemplating a similar application, and it may yet do
so -- and ICA would take the same position in regard to them -- as we
would in regard to any applicant from the US, EU, or any other part of
the developed world. Nor are we  necessarily alleging that ACDR or its
proposed panelists are lacking adequate professional credentials (we
are still reviewing all of their supporting documents). That said,
future UDRP providers are likely to be located in jurisdictions that
have different local legal cultures, and this make it even more
important to have a standardized governing document to keep the
"uniform" in UDRP.

The problem is this -- it makes absolutely no sense to require that
domains be registered or renewed via ICANN-accredited registrars who
are under a standard contract (the RAA) but then provide that you can
have your domain transferred away through a process administered by an
organization that has been granted this power by ICANN -- yet is under
no contract that defines its practices and procedures, is not subject
to any regular or standardized review by ICANN, and for which ICANN's
only disciplinary tool is accreditation revocation (so extreme a
sanction that it is unlikely to ever be used).

I would think that everyone in the Business Constituency would
understand the importance of a contractual relationship that defines
and constrains this grant of power, and provides flexible and
effective enforcement mechanisms, because that delegated power can
extinguish substantial monetary investment and goodwill in a domain.
Granting this kind of power absent any restraints is not an
accountable practice.

As I noted yesterday, this is not just a domain investor/developer
issue. We appear to be transitioning from a DNS that featured an
effective duopoly of UDRP providers (WIPO and NAF) and in which all
significant gTLDs were based in the developed world -- to one in which
the majority of gTLDs may well be headquartered in nontraditional
jurisdictions. Business interests may well be investing substantial
amounts in these new gTLDs, for both defensive and new branding
purposes. In this type of environment it is even more important that a
proliferating cast of UDRP providers be subject to uniform and
enforceable responsibilities, as that is the only means of assuring
that UDRP decisions are consistent within and among UDRP providers,
and that the UDRP remains an expedited and lower cost means of
addressing cybersquatting.

Let me conclude by noting that this issue of whether UDRP providers
should be under standard contract with ICANN is almost entirely
separable from the question of whether the UDRP evaluation standards
for determining the existence of cybersquatting should be reformed.
That latter issue is a more complicated matter, and ICA recently
suggested to ICANN that it should undertake an expert and impartial
study contrasting trends in Internet trademark law decisions in major
jurisdictions with trends in UDRP practice in order to provide a
common foundation of information to inform any broader UDRP reform
effort. There is no need to debate the substantive elements of the
UDRP in order to address the fundamental issue of whether UDRP
providers should be under standardized contract.

  I realize that it is difficult for the BC to reach consensus or act
quickly. But I would ask fellow members to start thinking about this
issue of whether you want  expanded ranks of UDRP providers to be able
to decide disputes involving your domains registered in hundreds of
new gTLDs located in multiple national jurisdictions without being
under contract in that role.

  If the BC is unable to oppose this particular application I would at
least hope we could achieve a consensus statement expressing concern
about the lack of a contractual relationship between these providers
and ICANN.

Thanks to my fellow members for taking this under advisement -- and
thanks again to all who contributed to yesterday's event.
Regards to all,

Philip

Philip S. Corwin
Partner
Butera & Andrews
Washington, DC 20004
202-347-6875 (office)
202-347-6876 (fax)
202-255-6172 (cell)