[bc-gnso] RE: Updated draft for approval on 14-Jan: BC comment on Strawman Solution

Mon Jan 14 15:14:07 UTC 2013

I have no objection to the URS being referenced in the BC's comment letter if that is the consensus among members. However, if we are going to mention the URS I hope we will not be selective in noting the elements of the final BC/IPC recommendations (referenced below).
In particular, ICA would want to see mention of #2, that there be some substantive review even in default cases. Perhaps the best means of addressing URS would simply be to say that the BC wants improvements and to  attach the WG#2 recommendations as an appendix to the letter.

URS RECOMMENDATIONS - Working Group #2

  1.  Agreement that the TMCH should automatically tie into the URS with an easy-to-use interface so that brand owners need only validate their marks once, thus making URS complaints simpler and less costly and the URS process faster.

  1.  Agreement that even with a default judgment, there must be at least some substantive review of the elements that make up a successful complaint.  Simple failure to respond to a URS claim would not result in automatic judgment in favor of complainant without a showing that the complainant established a prima facie case (e.g., valid trademark, identical or confusingly similar domain name, no legitimate registrant rights, bad faith registration and use).

  1.  Agreement that if the Respondent (registrant) does not respond, the brand owner should pay only an administrative fee and not the fee required in a contested proceeding where a full substantive review of the response is required.

  1.  Agreement that successfully suspended domains (the entire string at issue -only) should become ineligible for future registration, in perpetuity.

  1.  Agreement that the URS must operate on a low- or no-cost basis, which ICANN should subsidize/underwrite if necessary.

  1.  Agreement that the requirement that the registrant pay a Response Fee should be expanded beyond the partial loser pays system for 15 or more domains in a single complaint (as currently in the Applicant Guidebook).  During negotiations we will discuss the various ideas proposed on our calls (e.g., a showing that a respondent/registrant has a history of URS/UDRP loses opens the door for full loser pays, regardless of how many domains are at issue in a complaint against that respondent/registrant).

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From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of Deutsch, Sarah B
Sent: Monday, January 14, 2013 8:00 AM
To: Steve DelBianco; bc - GNSO list
Subject: [bc-gnso] RE: Updated draft for approval on 14-Jan: BC comment on Strawman Solution

Steve,

Thanks for the good work on the comments.  I have two comments.  First, on the Claims 2 notice, I would urge the following change:  "Accordingly, the BC supports a reasonable fee for the notice service PROVIDED THE CLAIMS 2 NOTICE CONTAINS THE SAME INFORMATION AND AN ACKNOWLEDGMENT BY THE REGISTRANT AS THE CLAIMS 1 NOTICE"  Without this change, it could be misread to mean the BC supports the business community paying all the costs for a an ineffective notice.

The comments again appear to be silent on the changes we are seeking to the URS.  Even though that issue is on a separate track at ICANN, this paper seems to be the place to remind them of the substantive remedies the IPC/BC working group proposed as a key priority, such as a real loser pays model and a permanent suspension remedy.  I would urge at least a few sentences on the importance of making the URS a meaningful (and not just low cost) remedy.

Sarah

From: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org> [mailto:owner-bc-gnso at icann.org] On Behalf Of Steve DelBianco
Sent: Sunday, January 13, 2013 9:29 PM
To: bc - GNSO list
Subject: [bc-gnso] Updated draft for approval on 14-Jan: BC comment on Strawman Solution

The attached update is for discussion and final approval during our 14-Jan member call.

I've updated the original draft per suggestions from Ron Andruff, John Berard, Elisa Cooper, and Sara Deutsch. A redline is also attached to show those changes from the 2-Jan draft.

The BC will submit these comments on 15-Jan.  We will also be able to submit Reply comments thru 5-Feb.

From: Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>
Date: Wednesday, January 2, 2013 5:44 PM
To: bc - GNSO list <bc-gnso at icann.org<mailto:bc-gnso at icann.org>>
Subject: DRAFT for review: BC comment on Strawman Solution

BC members:

In Toronto , the BC/IPC/ISPC requested improved Rights Protection Measures (RPMs).  That prompted ICANN executive management to host follow-up meetings with multiple stakeholders.   As a result, ICANN posted a "strawman solution" for public comment (link<http://newgtlds.icann.org/en/about/trademark-clearinghouse/strawman-solution-03dec12-en.pdf>).    Public comments are due by 16-Jan-2013.

Attached is a draft BC comment on the Strawman solution, based on prior BC positions and discussions, email exchanges with BC members, and initial review by the ex comm.

Per the BC charter, this draft is posted for 14 days of review and comment.  As soon as possible, please REPLY ALL with your suggested edits to these comments.   If any BC member objects to the BC filing the attached draft comment , please REPLY ALL and indicate your objection and reason.

We plan to finalize and submit these comments on 16-Jan-2013.

--
Steve DelBianco
BC vice chair for policy coordination

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