[bc-gnso] RE: POSTED: Business Constituency comment on recognizing new UDRP providers

[Phil Corwin]

The ICA just posted its own statement, which is attached.

In addition to sharing the BC's view regarding the need for ICANN to institute standard agreements with all UDRP providers, we also oppose ACDR's application based upon its numerous material deficiencies.

We look forward to continuing the dialogue with other BC members regarding the form and scope of a standard UDRP provider agreement.

Best to all,
Philip

-----Original Message-----
From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of Steve DelBianco
Sent: Thursday, October 28, 2010 5:21 PM
To: 'bc - GNSO list'
Subject: [bc-gnso] POSTED: Business Constituency comment on recognizing new UDRP providers


As discussed over last two weeks, the BC posted comments today on ICANN's plan to approve a new UDRP provider.

Thanks to Phil Corwin, our rapporteur for this topic, and to all who contributed to this effort.
 
Comment is shown below and is posted now at http://forum.icann.org/lists/acdr-proposal/msg00004.html

--Steve


------ Forwarded Message
Date: Thu, 28 Oct 2010 16:58:06 -0400
To: <acdr-proposal at icann.org>
Subject: Business Constituency comment on recognizing new UDRP providers

Business Constituency (BC) Comment on ICANN Proposal to Recognize New Domain Name Dispute Provider

*Background*
There is a pending request for comment regarding the application of the Arab Center for Domain Name Dispute Resolution (ACDR) to become a certified Uniform Dispute Resolution Procedure (UDRP) arbitration provider.
 
*Summary*
The Business Constituency (BC) cannot support approval of this or any other UDRP accreditation application at this time on the grounds that no new UDRP providers should be accredited until ICANN implements a standard mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities.

*Explanation*
The BC notes that the voluntary registration or renewal of a gTLD domain must be undertaken via an ICANN-accredited registrar. All registrars are subject to a uniform contractual agreement with ICANN, the Registrar Accreditation Agreement (RAA). ICANN recently strengthened the RAA with additional amendments and the addition of flexible enforcement options, and a Final Report proposing additional RAA amendments has just been delivered to the GNSO for its consideration.
 
In stark contrast, the involuntary termination or transfer of a domain can be ordered under the authority of a UDRP provider that has been accredited by ICANN but which is not bound by any constraints on or requirements pertaining to the exercise of that delegated authority.  This has led to increasing concerns about the lack of adequate procedural and substantive consistency in the UDRP process. Such concerns are likely to grow if additional providers are accredited in the absence of the uniform framework of a standard mechanism.
 
The BC strongly advocates that ICANN must first implement a standard mechanism with any and all UDRP arbitration providers that defines and constrains their authority and powers, and establishes regular and standardized review by ICANN with flexible and effective means of enforcement. The ultimate sanction of cancelling accreditation is an extreme sanction that ICANN has demonstrated a reluctance to initiate in other contexts. 
 
ICANN appears to be transitioning from an environment in which the vast majority of UDRP cases (approximately 98%) were handled by two arbitration providers (WIPO and NAF) and in which significant gTLDs were based in a limited number of national jurisdictions to one in which the majority of gTLDs and UDRP providers may well be headquartered in a widely distributed group of jurisdictions.

In the future, business interests may well be investing substantial amounts in these new gTLDs, for both defensive,  new branding, and other purposes.
In this type of environment it is even more important that  all  UDRP providers be subject to uniform and enforceable responsibilities, as that is the only means of furthering the goal that UDRP decisions are consistent within and among UDRP providers, and that the UDRP remains an expedited and lower cost remediation for addressing cybersquatting.
 
The BC notes that the issue of whether UDRP providers should be under a standard mechanism 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 a standard mechanism.

*** 

The rapporteur for these comments was Phil Corwin.

ICANN Business Constituency
http://www.bizconst.org


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