[Gnso-rpm-documents] URS "de novo" and "delay" cases

Tue Jul 24 16:17:54 UTC 2018

So then (and excuse my question) what is the actual difference between “review” of a default and an “appeal”?

PRK

From: "McAuley, David" <dmcauley at Verisign.com>
Date: Tuesday, July 24, 2018 at 6:12 PM
To: "Corwin, Philip" <pcorwin at verisign.com>, Paul Keating <Paul at law.es>, "mary.wong at icann.org" <mary.wong at icann.org>, "brian.beckham at wipo.int" <brian.beckham at wipo.int>, "gnso-rpm-documents at icann.org" <gnso-rpm-documents at icann.org>
Cc: "Berry.Cobb at icann.org" <Berry.Cobb at icann.org>
Subject: RE: [Gnso-rpm-documents] URS "de novo" and "delay" cases

Paul,

I agree with Phil on the burden of proof. 

The examination standards and burden of proof are set forth in Rule 8 of the Procedures. It seems to me both de novo processes simply involve a new ‘trial’ on the issues.

Best regards,

David

David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154

From: Corwin, Philip 
Sent: Tuesday, July 24, 2018 11:52 AM
To: Paul at law.es; McAuley, David <dmcauley at verisign.com>; mary.wong at icann.org; brian.beckham at wipo.int; gnso-rpm-documents at icann.org
Cc: Berry.Cobb at icann.org
Subject: RE: [Gnso-rpm-documents] URS "de novo" and "delay" cases

The burden of proof in any URS action should always be clear and convincing evidence, to differentiate it from the UDRP’s preponderance of the evidence standard.

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way
Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

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

From: Gnso-rpm-documents [mailto:gnso-rpm-documents-bounces at icann.org] On Behalf Of Paul Keating
Sent: Tuesday, July 24, 2018 11:47 AM
To: McAuley, David <dmcauley at Verisign.com>; mary.wong at icann.org; brian.beckham at wipo.int; gnso-rpm-documents at icann.org
Cc: Berry.Cobb at icann.org
Subject: [EXTERNAL] Re: [Gnso-rpm-documents] URS "de novo" and "delay" cases

David,

Is there a difference in the standard of proof in the context of a review vs appeal?

I agree that there should not be 2 bites at the apple and rather prefer a reading that allows the respondent a special period to appeal a default as opposed to the period specified in 12.1.

PRK

From: Gnso-rpm-documents <gnso-rpm-documents-bounces at icann.org> on behalf of "McAuley, David via Gnso-rpm-documents" <gnso-rpm-documents at icann.org>
Reply-To: "McAuley, David" <dmcauley at Verisign.com>
Date: Tuesday, July 24, 2018 at 5:12 PM
To: "mary.wong at icann.org" <mary.wong at icann.org>, "brian.beckham at wipo.int" <brian.beckham at wipo.int>, "gnso-rpm-documents at icann.org" <gnso-rpm-documents at icann.org>
Cc: "Berry.Cobb at icann.org" <Berry.Cobb at icann.org>
Subject: Re: [Gnso-rpm-documents] URS "de novo" and "delay" cases

Thanks Mary, Brian, Berry, and all:

I have done a review of the 10 ‘de novo’ cases listed in Brian’s email and will be able to speak about them on our next call – I have drawn a few conclusions about how we might be able to handle appeal cases generally a bit more clearly - I say ‘generally’ because there are both de novo reviews and de novo appeals and the terminology can become confusing. 

Some of those ten listed cases are de novo appeals of actual determinations below (see. e.g., the wolfram.ceo case), while at least one other is a de novo review of a default determination (see, e.g., the virginmobile.top case). It is easy to get these mixed up – in fact in the wolfram.ceo case (linked below) the appeal examiner said, “Appellant requests a de novo review …” – when it was actually a de novo appeal rather than a review. I realized that sounds a minor quibble indeed, but clarification around terminology could be a useful thing for us to do. These cases are very confusing in their terminology. 

As to the specific meaning of de novo review, as Mary asks about, it gets at default determinations under Rule 6.4 of the URS Procedures, as Mary notes. 

Rule 6.4 provides, in part, as follows: 

6.4 If after Examination in Default cases, the Examiner rules in favor of Complainant, Registrant shall have the right to seek relief from Default via de novo review by filing a Response at any time up to six months after the date of the Notice of Default. …   [Emphasis added]

Rule 6.5 makes it clear that de novo reviews are not appeals. 

On the other hand, it is Rule 12 that provides for appeals. 

Rule 12.1 uses the term ‘de novo’ to describe essentially any appeal:

Either party shall have a right to seek a de novo appeal of the Determination based on the existing record within the URS proceeding for a reasonable fee to cover the costs of the appeal. An appellant must identify the specific grounds on which the party is appealing, including why the appellant claims the Examiner’s Determination was incorrect.   [Emphasis added]

Rule 12.4 also makes it clear that defaults are appealable. 

Possible implications for our work:

In my opinion, this exercise shows some useful procedural points we can make about terminology, use of forms, suggestions for writing, etc. (On suggestions for writing, we may simply encourage examiners to write short paragraphs and use sub-headings. Try reading through the findings of fact in the brandchannel.xyz case to see what I mean.) And we could clear up some confusion between rules 6 and 12 (why, for example, does rule 12.4 allow for direct ‘appeal’ of a default rather than going through a ‘review’ under 6.4 as that Rule allows?)

And, in my opinion, a policy issue arises from this exercise: Do we wish to allow to defaulters to have two bites at the ‘de novo’ apple – both (1) a de novo review and (2) a de novo appeal under Rule 12.1 (presumably of the determination made in the de novo review)? That is how it reads to me, would be curious if others see the rules that way.   

Best regards,

David

David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154

From: Gnso-rpm-documents <gnso-rpm-documents-bounces at icann.org> On Behalf Of Mary Wong
Sent: Tuesday, July 24, 2018 12:45 AM
To: BECKHAM, Brian <brian.beckham at wipo.int>; gnso-rpm-documents at icann.org
Cc: Berry Cobb <Berry.Cobb at icann.org>
Subject: [EXTERNAL] Re: [Gnso-rpm-documents] URS "de novo" and "delay" cases

Hello Brian and everyone,

Just following up on the topic of the number of URS cases where a de novo review occurred, Berry had asked previously what the Sub Team’s understanding is of what that means – for example, the staff understanding had been that the term as used in this PDP referred specifically to those cases where a Default Determination was first issued (since no Response had been filed within the initial 14-day response period), but a Response was then subsequently filed before the permissible 6-month window expired (see, e.g. Section 6.4 of the URS Procedure: http://newgtlds.icann.org/en/applicants/urs/procedure-01mar13-en.pdf). This understanding would therefore exclude cases where an Appeal occurred (of which we know there were 14 as of end-December 2017) and, of course, also exclude cases where no Response was filed and thus the Default Determination stands.

Staff believes that clarifying this point is essential, especially as it will make a difference to the number of cases to be reviewed under this heading. We will therefore appreciate the Sub Team’s guidance on this point.

In the meantime, and to assist with your review of the cases in this category, staff has gone through and compiled a table (with links to the actual Final Determination) of all the URS cases where a Final Determination (i.e. not a Default or Appeal) was issued and published. You will see from the attached that our count of these cases amounts to 29, with 13 of them showing that both a Default as well as a Final Determination were published. We have also for the present refrained from tagging or using the phrase “de novo review” pending confirmation from the Sub Team. 

We hope the attached information and list is useful, especially to David M and Brian who had brought up the topic and for which David had volunteered to assist with the initial review. Please note that we have not had the chance to cross-check all the entries against our other tables and spreadsheets, but in the interests of time we wanted to get the initial table out to the Sub Team for your review and discussion.

Thanks and cheers

Mary, Berry, Julie and Ariel

From: Gnso-rpm-documents <gnso-rpm-documents-bounces at icann.org> on behalf of "BECKHAM, Brian" <brian.beckham at wipo.int>
Date: Monday, July 16, 2018 at 11:54
To: "gnso-rpm-documents at icann.org" <gnso-rpm-documents at icann.org>
Cc: Berry Cobb <Berry.Cobb at icann.org>
Subject: [Gnso-rpm-documents] URS "de novo" and "delay" cases

Hi all,

Following on our good call last week, below are the 10 cases in which a “de novo” review was, according to a search on the NAF site, was in play (I believe David McAuley was willing to look at these to see if there were any conclusions to draw):

1554143
wolfram.ceoWolfram Group LLC v. Andrew Davis et al.URS04/22/2014Suspended
Final [adrforum.com]
Appeal [adrforum.com]05/06/2014
1563665
lockheed.email, lockheedmartin.emailLockheed Martin Corporation v. yoyo.email et al.URS06/10/2014Suspended
Final [adrforum.com]
Appeal [adrforum.com]08/06/2014
1564796
mwe.emailMcDermott Will & Emery LLP v. yoyo.email et al.URS06/17/2014Suspended
Appeal [adrforum.com]08/07/2014
1628473
eos.blackfridayCanon Kabushiki Kaisha v. North Sound Names et al.URS07/13/2015Suspended
Final [adrforum.com]
Appeal [adrforum.com]09/13/2015
1637103
tagheuer.digitalLVMH SWISS MANUFACTURES SA v. GiftSMS et al.URS09/11/2015Suspended
Final [adrforum.com]
Appeal [adrforum.com]11/23/2015
1672049
sanofi.xinSANOFI v. 苏威 et al.URS04/26/2016Suspended
Final [adrforum.com]
Appeal [adrforum.com]06/28/2016
1673323
brandchannel.xyz, interbrand.clubInterbrand Group v. WhoisGuard, Inc. et al.URS05/06/2016Suspended
Final [adrforum.com]
Appeal [adrforum.com]06/15/2016
1681062
grey.emailGrey Global Group LLC v. i-content Ltd. et al.URS06/27/2016Claim Denied
Final [adrforum.com]
Appeal [adrforum.com]08/10/2016
1716444
greubel-forsey.watchGFPI S.A. v. Michael Meyer et al.URS02/08/2017Suspended
Final [adrforum.com]
Appeal [adrforum.com]03/23/2017
1760252
virginmobile.topVirgin Enterprises Limited v. Zhu Jie et al.URS11/30/2017Suspended
Default [adrforum.com]
Final [adrforum.com]01/19/2018

Also, FYI – to recall there were no cases where “laches” appeared and 6 (pasted below) where “delay” appeared:

1587022
holidayinn.wangSix Continents Hotels, Inc. v. hong yong et al.URS10/29/2014Suspended
Default [adrforum.com]
Final [adrforum.com]11/24/2014
1592905
porsche.kaufen, porsche-design.kaufenDr. Ing. h.c. F. Porsche AG v. visucom ag et al.URS12/03/2014Suspended
Default [adrforum.com]12/22/2014
1613317
bankofthewest.moneyBank of the West, N.A. v. Peter KeatingURS04/08/2015Suspended
Default [adrforum.com]04/27/2015
1620565
urbanoutfitters.saleUrban Outfitters, Inc v. Domain AdministratorURS05/28/2015Suspended
Default [adrforum.com]06/17/2015
1636250
fxcm.topForex Capital Markets LLC v. zechuan changURS09/08/2015Suspended
Default [adrforum.com]09/28/2015
1734989
schneider-electric.storeSCHNEIDER ELECTRIC SE v. Private PersonURS06/08/2017Suspended
Default [adrforum.com]06/28/2017

Best,

Brian 

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