[bc-gnso] RE: Draft v1 of BC comments on latest gTLD Guidebook

Phil Corwin psc at vlaw-dc.com
Wed Apr 27 21:46:42 UTC 2011


Good work as usual.

But this legacy statement on the URS (p.14) is very much outdated--

The URS is not a rapid process and takes nearly as long as using the UDRP with a higher burden of proof.  The URS provides little certainty: Even if the trademark owner wins by default, Registrant can seek de novo review up to 2 years after suspension. The suspension is temporary and only takes place for “balance of registration” period with option to extend for one year at commercial rates.  The URS places brand owners in a perpetual monitoring situation with no permanent ability to transfer the domain name.  With a 5,000 word limit, the URS winds up being a lengthy process with little certainty for brand owners.

In fact, I think the URS process is now substantially shorter than a UDRP, as are its costs. The standard registrant response time is now 14 days; review (time for filing an appeal) has been shortened to six months. The projected filing fee will be about $300 and the complainant word limit has been cut to 500. On behalf of ICA I am not pleased with all these changes, but the BC statement should be accurate and reflect the present Guidebook. ICANN has even adopted a form of "loser pays" targeted at mass cybersquatters.

As for this statement on p.1 -- RPMs are still substantially weaker than those recommended by the IRT.  --
I would suggest actually going back to review what the IRT recommended and then measuring what's in the Guidebook now. Anyway, if the BC is going to cite the IRT it also should be candid that some of what it is advocating goes beyond the IRT.

For example, the IRT never recommended a domain transfer option through URS in order to preserve a fundamental distinction with the UDRP (as well as to avoid the possibility of reverse domain hijacking through a low-cost, expedited process). Now the Board said in Brussels that it would acquiesce to the GAC request for a transfer option -- but that is not reflected in the new Guidebook language, and the request disappeared from the GAC's recent response on rights protection issues. Perhaps that's because many individuals (including me) spoke out in SF against departing from the IRT position and fudging that fundamental distinction between the UDRP and URS.

Before reflexively reasserting a demand for a transfer option I hope BC members would seriously consider the alternative that I advocated in SF (which I did after speaking with a large number of IP advocates, all of whom reacted favorably) -- which would be to  have a domain on the losing end of a URS action placed on a permanent "do not re-register" list. That would relieve complainants of both continuing monitoring burdens and registration costs for unwanted domains, while preserving a critical distinction with the UDRP and assuring registrants that the URS could not be abused for domain hijacking. I thought it was a win-win when I voiced it in SF and still do now.

Best regards,

Philip S. Corwin, Founding Principal

Virtualaw LLC

1155 F Street, NW

Suite 1050

Washington, DC 20004




"Luck is the residue of design" -- Branch Rickey

From: owner-bc-gnso at icann.org [owner-bc-gnso at icann.org] on behalf of Steve DelBianco [sdelbianco at netchoice.org]
Sent: Wednesday, April 27, 2011 2:57 PM
To: 'bc-GNSO at icann.org GNSO list'
Subject: [bc-gnso] Draft v1 of BC comments on latest gTLD Guidebook

Per discussion on our 21-Apr member call, here is a draft framework for BC comments on the 15-Apr-2011 Guidebook.

This comment period and docs are described at http://icann.org/en/topics/new-gtlds/comments-6-en.htm
These comments are due 15-May, giving us 18 days for edits, review, and approval.

For this initial draft, I updated our Dec-2010 Guidebook comments in several ways:
- Acknowledged areas where ICANN made changes consistent with BC recommendations.
- Moved all our RPM concerns to Module 5
- Asked several questions for BC members (in red)
- Added a proposed definition for "Single-Registrant TLD".   We may hold a separate call on this.

All BC members are invited to suggest edits.     Please use track changes and circulate to BC list.
I will assemble another draft version with all changes received as of May 1.

Below are the primary contributors from our Dec-2011 comments, organized by module.

Module 1: Introduction to New gTLD Application Process and Fees.  (Berry Cobb, Ron Andruff )

Module 2: Evaluation Procedures.    (Philip Sheppard, Jon Nevett,  Adam Palmer,  Zahid Jamil,  Sarah Deutsch )

Module 3: Dispute Resolution. ( John Berard, Ron Andruff )

Module 4: String Contention.   ( Ron Andruff )

Module 5: Transition to Delegation; Registry Agreement, Code of Conduct, RPMs
( Philip Sheppard, Fred Fellman,  Berry Cobb, Jon Nevett, Sarah Deutsch )

Other notes:
In our SFO comments, the BC said the new gTLD communications plan should help the world's businesses and users understand changes coming in the DNS.  But I didn't see anything in the latest Guidebook about the Communications Plan. So that comment was not reflected in the attached draft.

Steve DelBianco
vice chair for policy coordination


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