[council] UDRP Motion and Thoughts on the Friendly Amendment from the RySG

Neuman, Jeff Jeff.Neuman at neustar.us
Tue Dec 13 14:59:18 UTC 2011


As you are aware the following motion is currently on the table:

Original Motion

Whereas the Registration Abuse Policies Working Group submitted a final report the GNSO Council on 29 May 2010 (see http://gnso.icann.org/issues/rap/rap-wg-final-report-29may10-en.pdf), recommending an issue report on the current state of the UDRP considering both
(a) How the UDRP has addressed the problem of cybersquatting to date, and any insufficiencies/inequalities associated with the process, and
(b) Whether the definition of cybersquatting inherent within the existing UDRP language needs to be reviewed or updated, and
Whereas, on February 3, 2011, the GNSO Council requested an Issues Report in accordance with the recommendations of the Registration Abuse Policies Working Group (http://gnso.icann.org/issues/rap/rap-wg-final-report-29may10-en.pdf) and
Whereas, a Preliminary Issue Report was published on 27 May 2011 (http://gnso.icann.org/issues/prelim-report-current-state-udrp-27may11-en.pdf) and series of webinars and workshops were held soliciting public comment to allow for the ICANN community to provide feedback on the analysis and recommendations contained therein, and
Whereas, a Final Issue Report was published on 3 October 2011 (http://gnso.icann.org/issues/udrp/udrp-final-issue-report-03oct11-en.pdf) in which ICANN staff recommended the GNSO Council consider the "perspective of the majority of the ICANN community, and the advice of the Government Advisory Committee (GAC), and the At-Large Advisory Committee" and that "a PDP be delayed until after the New gTLD Uniform Rapid Suspension System (URS) has been in operation for at least eighteen months. . . [to] allow the policy process to be informed by data regarding the effectiveness of the URS, which was modeled on the UDRP, to address the problem of cybersquatting."
RESOLVED, that the GNSO approved the initiation of a PDP and the establishment of a Working Group on recommendation #7 of the IRTP Part B Working Group concerning the requirement to lock a domain name subject to UDRP proceedings, which the GNSO Council at its meeting on 22 June 2011 received and agreed to consider when it takes up consideration of the Final Issue Report on the Current State of the UDRP.
RESOLVED further, the GNSO Council requests a new a new Issue Report on the current state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to, the UDRP and URS, should be delivered to the GNSO Council by no later than eighteen (18) months following the delegation and launch of the first new gTLD.

Proposed Friendly Amendment
David Taylor, on behalf of the IPC has proposed a friendly amendment that would substitute the following for the last paragraph:

RESOLVED further, the GNSO Council requests a new Issue Report on the current state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to, the UDRP and URS, should be prepared with staff commencing the drafting of this report eighteen (18) months after the publication of at least a 100 UDRP or URS that cover at least 10 new gTLDs. Such report should be delivered to the GNSO Council within four (4) months of that trigger date.

RySG position on proposed Amendment
As currently drafted, the RySG would not accept the amendment as friendly.  The RySG believe that it has already compromised in agreeing to delay the PDP for 18 months after the launch of the first of the new gTLDs and increasing the scope to cover all trademark rights protection mechanisms.  This was precisely what the GAC, ALAC, IPC & BC asked for during the public comment period on the Preliminary Issue report.  This already delays the full pdp for 3.5 years from today.  This is because we believe the first new gTLD will not launch until Q1 2013.  18 months from then is Q3 2014.  That is when a Preliminary Issue Report will be put out for comment.  By the time you get a Final Issue Report (after a public comment period, staff analysis, etc.), and a vote to approve a PDP by the Council (including possibly 1 deferral), we are talking about late Q1 or Q2 of 2015.

The proposed amendment would delay the full PDP by at least another year (4.5 years from now).  The rationale is that the first gTLD will not launch until Q1 2013 at the earliest.  We estimate that it will take 6 months to get at a minimum to get 100 decisions in both the UDRP and URS.  That brings us to Q3 2013.  18 months from the publication of 100 decisions in each is Q1 2015 at the earliest.  4 months from then is Q3 2015 and that is only for the preliminary issue report.  A 30-45 day public comment period, plus analysis, debates, etc. makes the delivery of the final issue report at Q1 2016 and a vote by the Council (with deferral) at q2 2016.

We believe that much delay is too long.  Although the registries understand the IPC's view that there should be a number of URS decisions before commencing the evaluation, the original concept was to just look at the UDRP.  In order to compromise with the IPC and the GAC, the RySG agreed it should cover other trademark RPMs as well for new gTLDs.  Now, that we agreed to expand the scope, the IPC is using that compromise to ask for further delay.  Had we known that when we initially compromised to cover the additional topics, we may not have agreed to increase the scope or we would have separated the motion out to call for the UDRP review within 18 months and a later time period for the rest of the RPMs.  Not to mention that the Affirmation of Commitments calls for a review of new gTLDs (which I am sure will also look at RPMs) within 12 months of the launch of the first new gTLD.  So whether the data is there or not, ICANN will be evaluating the new RPMs before we commence our PDP on them.  Finally, we believe that a Preliminary Issue report can be written before a full set of data is available.  It would just be identifying the issues at the time.  If additional issues come up or more data comes in, that can be looked at by the Working Group at that time (assuming a PDP is commenced).

We are now asking the entire Council to come together and compromise.  The NCSG and certain members of the contracted parties house are not happy because they want to commence the PDP on the UDRP right away (at least with respect to certain topics) and the CSG wants to delay the PDP even further to ensure we have the full set of data. Each side has very legitimate arguments.  No one is right or wrong and no one is completely happy.  Perhaps that is why the RySG believes this motion strikes the appropriate balance :)

I hope this note helps and we will discuss further during the meeting.

Jeffrey J. Neuman
Neustar, Inc. / Vice President, Law & Policy
21575 Ridgetop Circle, Sterling, VA 20166
Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / jeff.neuman at neustar.biz<mailto:jeff.neuman at neustar.biz>  / www.neustar.biz<http://www.neustar.biz/>
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