[gnso-rpm-wg] URS / UDRP proposals -- data on registrar/registry compliance costs

Wed Sep 12 02:07:55 UTC 2018

I think that ICANN mandated arbitrators handing out dozens and dozens of
monetary awards against registrants who may  not even know that they were
the subject of a UDRP would be outside of ICANN's remit.   The enforcement
of these awards would fall to local courts (which would cause a huge
chilling effect on registrations in general).  This chilling effect may
benefit some commercial interests, but i don't know how it creates a more
stable or secure Internet.

On Tue, Sep 11, 2018 at 9:09 PM Michael Graham (ELCA) via gnso-rpm-wg <
gnso-rpm-wg at icann.org> wrote:

> Disagree.  Determining appropriate penalties for abuse and misuse of
> domain names and the DNS is entirely within the scope of ICANN’s powers and
> purview in order to ensure the stable and secure operation of the
> internet.  Under Section 4.6(d) of its bylaws, ICANN is committed to
> ensuring that it will adequately address issues of competition, consumer
> protection, security, stability and resiliency, malicious abuse issues,
> sovereignty concerns, and rights protection in the New gTLD program.  Thus,
> determining whether a “loser pays” program in connection with URS or UDRP
> proceedings would further the interests of safety, stability and security
> is certainly within the scope of ICANN policy and this PDP’s review.
>
>
>
> Michael R. Graham
>
>
>
> *From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] *On Behalf Of *Paul
> Keating
> *Sent:* Thursday, September 06, 2018 7:56 AM
> *To:* Mitch Stoltz <mitch at eff.org>
> *Cc:* gnso-rpm-wg at icann.org
> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on
> registrar/registry compliance costs
>
>
>
> I completely agree with the comments of Mr Stoltz!!
>
>
>
> This is a huge attempt at over reach.
>
>
>
> Paul Keating.
>
> Sent from my iPhone
>
>
> On 6 Sep 2018, at 03:21, Mitch Stoltz <mitch at eff.org> wrote:
>
> Monetary "penalties" on registrants, and any recovery of costs beyond the
> arbitration itself, are beyond the scope of URS, UDRP, or indeed any ICANN
> policy. Those are matters for national courts. Aside from being a vast
> expansion of these dispute resolution policies, what Georges proposes is
> unworkable in practice. How would "penalties" and second- and third-order
> costs be collected from registrants? Would registrars have to sue their
> customers to collect these funds on behalf of trademark holders? Or would
> every registrant have to submit to potentially unbounded contractual
> liability to unknown third parties as a condition of registration?
>
> Establishing a workable fee structure for URS (and UDRP) arbitrations is
> one thing. Expanding these policies to become systems for punishment of bad
> actors and broadly defined cost recovery is quite another—that's the domain
> of courts and trademark law, not ICANN policies.
>
>
> Mitch Stoltz
>
> Senior Staff Attorney, EFF | 415-436-9333 x142
>
> https://www.eff.org/donate | https://act.eff.org/
>
> On 9/5/18 2:55 PM, Paul Tattersfield wrote:
>
> Georges I tend to agree....
>
> If this is going to be considered further then I think we need to look at
>
> 1) if some registrars are suffering a disproportionate amount of costs in
> proportion to the total number of domains they have under management? and
>
> 2) if there any is correlation between the age of the domain and the
> number of complaints?
>
>
>
> On Wed, Sep 5, 2018 at 8:31 PM Nahitchevansky, Georges <
> ghn at kilpatricktownsend.com> wrote:
>
> Will this not raise the cost of URS and UDRP proceedings.  If so, who pays
> that?  The problem is that what is being proposed is just another cost
> shifting.  The basic cost issue arises from the fact that there exists a
> sub-group of bad actor domain name registrants who register infringing
> domain names at a fairly low cost and use such in often nefarious ways
> (including in deceiving and defrauding consumers), which then forces brand
> owners to expend large amounts of money to enforce and protect their rights
> (staff time, investigator and attorney’s fees, filing fees, responding at
> times to government agencies, post URS and UDRP fees to secure a suspension
> or a transfer of a domain name etc.).  All of this is further complicated
> by the GDRP, which just adds more costs.  So the question in regards to
> registrar and registry costs ignores the question about the brand owner
> costs?  Typically the view espoused is that enforcement is part of the
> brand owners cost of doing business, so the question is why isn’t this cost
> to registrar and registries not the cost of doing business. Registrars and
> registries, after all, basically promote the registration (sale) of domain
> names for profit (registration of domain names is the service/ product
> being sold, just like a brand owner sells a product or service).  Registrar
> and registries are not akin to a provider such as WIPO or NAF.  If we start
> going down the path of costs, what about the added costs that result when
> registrars, for example, promote the sales of infringing domain names or
> unnecessarily complicate transfers of domains names after a successful
> UDRP, or otherwise act in other ways that are prejudicial to the brand
> owner constituency.  Perhaps what should be looked at in a more focused way
> is the sub-group of domain name registrants that engage in actual and clear
> cybersquatting and then figuring out some meaningful penalty that can
> compensate everyone who bears a cost (i.e., brand owners, providers,
> registrars and registrants).  It just seems that cost shifting arguments
> miss the point that someone can waltz in, register an infringing domain
> name for often less than $20 USD and create significantly higher costs for
> a number of parties that in the aggregate are quite significant.  My point
> here is that yes there are costs, but they should not fall
> disproportionately on one constituency.  So if we start going down this
> path, then we should look at everyone’s costs and discuss what is fair and
> appropriate, as well as what penalties should be placed on bad actors.
>
>
>
>
>
> *From:* gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> *On Behalf Of *Jonathan
> Frost
> *Sent:* Wednesday, September 5, 2018 2:39 PM
> *To:* Doug at giga.law
> *Cc:* gnso-rpm-wg <gnso-rpm-wg at icann.org>
> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on
> registrar/registry compliance costs
>
>
>
> I agree that it's not an issue that will arise with frequency, however
> these types of issues do arise, they do create costs for the
> Registries/Registrars.  In fact, like George pointed out, it arises when a
> TM Holder prevails in URS, then decides that it actually wants possession
> of the domain, and subsequently files a UDRP.
>
>
>
> My main point was that, in addition to the day to day time commitments,
> there are unpredictable legal costs associated with the administration of
> URS/UDRP (in part because rule sets laws or contracts cannot cover all
> scenarios without being inefficiently burdensome).
>
>
>
> That's why it makes sense for there to be a cost-recovery mechanism, so
> that the Registries/Registrars can be compensated costs related to
> administration overhead in the same way that NAF/WIPO are compensated.
>
>
>
> Jonathan
>
>
>
> On Wed, Sep 5, 2018 at 2:19 PM Doug Isenberg <Doug at giga.law> wrote:
>
> Thanks, Jonathan, this seems like a very discrete issue that is unlikely
> to arise with any frequency.  (Actually, now that I reread your email, I’m
> not even sure what a “lifetime lock” is in the context of a URS proceeding
> – can you explain?)  I’d love to know of any real-life disputes that fit
> the situation you’ve described.
>
>
>
> Doug
>
>
>
>
>
> *From:* Jonathan Frost <jonathan at get.club>
> *Sent:* Wednesday, September 5, 2018 1:59 PM
> *To:* Doug at giga.law
> *Cc:* gnso-rpm-wg <gnso-rpm-wg at icann.org>
> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on
> registrar/registry compliance costs
>
>
>
> For instance, there is ambiguity about what action a registry should take
> when a domain which is already the subject of a URS judgement & lifetime
> lock receives a UDPR judgement that requires unlock & transfer.  The URS
> rules don't account for this situation, and by their letter, require that
> the domain not be unlocked.  However, the registries are also required to
> comply with consensus policies (such as UDRP).
>
>
>
> Jonathan
>
>
>
> On Wed, Sep 5, 2018 at 1:47 PM Doug Isenberg <Doug at giga.law> wrote:
>
> What are some of the “ambiguities in complying with the rules”?
>
>
>
> Doug
>
>
>
>
>
> *From:* gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> *On Behalf Of *Jonathan
> Frost
> *Sent:* Wednesday, September 5, 2018 1:15 PM
> *To:* icann at leap.com
> *Cc:* gnso-rpm-wg <gnso-rpm-wg at icann.org>
> *Subject:* Re: [gnso-rpm-wg] URS / UDRP proposals -- data on
> registrar/registry compliance costs
>
>
>
> I agree that Registries and Registrars need to be able to recover the cost
> of administering the URS/UDRPs, as part of the filing fee.
>
>
>
> The costs that the Registries/Registrars bear actually goes beyond what
> Reg has said.  There are situations where we have to go to outside counsel
> or even ICANN to resolve ambiguities in complying with the rules.
> Additionally, the 24 hour action requirement on locking a domain that has
> received a URS complaint actually increases the resources that have to be
> dedicated, beyond the actual number of minutes per complaint, because
> compliance personal has to allocate/reserve a certain time per day to
> perform the tasks, even if no complaint is received that day.
>
>
>
> Just like the arbitration administrators charge a cost recovery fee for
> administration as part of the filing fee, it's just common since that the
> Registries/Registrars would too.
>
>
>
> Jonathan Frost
>
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