[council] Comments re: GNSO Update on the Framework for the Policy Status Report on the UDRP

[Marie Pattullo - AIM]

Thanks for all the work on this. On reading the slides, I have a number reactions so for efficiency, I set them out below prior to our meeting later.

Slide 4
“The Uniform Domain Name Dispute Resolution Policy (the "Policy") is an ICANN consensus policy that went into effect on 24 October 1999.”

  *   It was written by WIPO. That’s relevant not just for history, but for understanding WIPO’s granularity of expertise - knowledge about where it came from and how it works.
“The UDRP was created to provide a quick, efficient and more cost-effective way to facilitate trademark protection at the second level of the DNS.”

  *   Yes, but its end goal is to protect users and consumers from cybersquatting and related fraud. TM protection alone reads as “just protecting companies” – that is absolutely not the case.

Slide 6
“…assess effectiveness of the UDRP in terms of its overarching goals as identified in the 2011 Final Issue Report:
■ ii) Addressing abuse”

  *   It’s not abuse (wide) it’s abusive registrations (narrow). The original WIPO Report said “The scope of the procedure would be limited to cases of abusive registrations (or cybersquatting)”. We need to be careful here not to suggest it’s about broader DNS abuse.
“Share general data on case filings, decisions, etc.”.

  *   What does this mean? Data that there were x cases filed and y decisions? On what basis, what was the reason for bringing the case, were the parties first timers or multiple applicants/defendants, what was the justification for the decision, does language play a part… This formulation misses both nuance and the bigger picture: the UDRP is the tip of the iceberg (private acquisitions being a big way names are reclaimed) and there are various reasons why brand owners use other available tools that would never feature in such statistics (for example, compare the defensive portfolios of 100 random brands vs the number of UDRP case they have filed – the latter is not even in the same ballpark as the former).
“High level statistics of data collected for each UDRP goal”

  *   I’m not sure what this means? And how do you assess efficiency and fairness through stats?

Slide 7
“Review of UDRP cases filed per year. Continued growth in UDRP filings worldwide helps demonstrates that the UDRP remains a popular/effective tool to combat cybersquatting.”

  *   It also demonstrates that cybersquatting isn’t going away. (The Charter could consider whether we need some form of Notice & Suspension front-end bolt-on to the existing UDRP?)
“Community views concerning effectiveness”

  *   Effectiveness for whom? TM owners don’t want others squatting their names (and thus duping users/consumers, and/or leading to unfair trading practices necessitating expensive purchases and defensive registrations, which have no wider societal or public interest benefit and serve only to clog the DNS with parked names). Domainers want to buy/sell all names. CPs want to register all names. Non-commercials want everyone to have the chance to register any name. (Often there are free speech concerns cited, yet free speech features in a tiny percentage of UDRP cases and the UDRP itself already codifies free speech as a defence - numerous cases have found in favour of legitimate free speech). Brand owners’ views on the “effectiveness” of core aspects of (e.g.) Registrars’ business would not likely be given equal weight as that of the CPH. So effectiveness for whom?
Analysis of duration/fees

  *   OK but – what’s the goal? Who will tell you the fees for litigation – so how can you analyse that? It’s case-by-case/jurisdiction relevant, surely? Do we include the $$$$ paid by brands to develop and pursue a UDRP with the 0.0001$ paid by a squatter? What is this supposed to show, how would you get those figures and from whom?

Slide 8
“Overview of whether the UDRP is impartial/fair for trademark holders and domain name registrants”

  *   This is the only part of the slide that refers to fairness for TM holders – the rest seems weighted to assumptions that they are somehow the ones being “unfair”.
  *   What about fairness for users and consumers? Should we not protect them from being - deliberately - duped/defrauded?
  *   What is the cost on both sides? How much does it cost (monitoring the entire DNS = money + resources; + duped consumers + reputational damage; x repeat offenders x false registrant details + unknown (redacted…) details; vs registering one DN & running away?
“Forum Shopping - Analysis of complaint win percentage for each UDRP provider”

  *   This is rather loaded – again, an assumption that TM owners – alone – must be in the wrong. Analyses of this conducted by WIPO also show that the stats on success rates across main providers were remarkably similar.
“Reverse Domain Name Hijacking (RDNH)”

  *   This is about 0.5% of all cases. Of course it should be addressed, but let’s not make it bigger in theory than it is in reality.

Slide 9
“UDRP Goal: Addressing Abuse”

  *   Again – the goal is addressing cybersquatting, i.e. abusive registrations. Not all abuse. This is an important distinction.
“Analysis of yearly panel decisions published by each provider on their website (e.g., transfer/cancellation rates, complaints rejected, split decisions)”

  *   So stats only with no reasons why the cases went that way?
“Summary of UDRP-related data from ICANN org departments”

  *   This will be a very incomplete picture as most cases do not need to be escalated to ICANN.
“.CL project”

  *   If we include this, should we not also look at assistance (filing tips, fees etc.) to micro, small and medium-sized companies who face cybersquatting but simply cannot afford the $$$$ to take a UDRP forward? Again, why are we looking at only one side of the coin?

Slide 11
All of this strikes me as a waste of staff’s scarce resources when we have a massive dataset already - the WIPO Jurisprudential Overview and its (online) stats page: would it not make more sense to start there and ask the other providers to add their data?

Slide 14
With this timeline, I really don’t see how staff can (although I know they will do their best to do so!) produce something comprehensive and thus useful in practice.

I return to what I said in July: we all know we need a better Charter and if we want it to be built on reality and experience, I can’t see why we’re not utilising this Bylaws provision:
Section 13.1. EXTERNAL EXPERT ADVICE
(a) Purpose. The purpose of seeking external expert advice is to allow the policy-development process within ICANN to take advantage of existing expertise that resides in the public or private sector but outside of ICANN. In those cases where there are relevant public bodies with expertise, or where access to private expertise could be helpful, the Board and constituent bodies should be encouraged to seek advice from such expert bodies or individuals.

We have WIPO (who wrote it in the first place and do it every single day). They’re global, independent, and expert. We have the other providers. Should we not be asking the experts for what actually happens and asking them to produce this PSR, or at the very least have a working group of them and staff?

Looking forward to discussing this later,

Marie


From: council <council-bounces at gnso.icann.org<mailto:council-bounces at gnso.icann.org>> On Behalf Of Julie Hedlund via council
Sent: Tuesday, 14 September 2021 02:50
To: council at gnso.icann.org<mailto:council at gnso.icann.org>
Subject: [council] Resend Re: FOR COUNCIL DISCUSSION: Agenda Item 5 -- GNSO Update on the Framework for the Policy Status Report on the UDRP

Dear all,

Please see the corrected attached version of the slides per below.

Kind regards,
Julie

From: council <council-bounces at gnso.icann.org<mailto:council-bounces at gnso.icann.org>> on behalf of Julie Hedlund via council <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Reply-To: Julie Hedlund <julie.hedlund at icann.org<mailto:julie.hedlund at icann.org>>
Date: Monday, September 13, 2021 at 6:39 PM
To: "council at gnso.icann.org<mailto:council at gnso.icann.org>" <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: [council] FOR COUNCIL DISCUSSION: Agenda Item 5 -- GNSO Update on the Framework for the Policy Status Report on the UDRP

Dear GNSO Councilors,

Per the following item from the agenda below, please see the attached slides for your consideration.

Item 5: COUNCIL DISCUSSION - GDS Update on the Framework for the Policy Status Report Framework on the UDRP (30 minutes)

Kind regards,
Julie
Julie Hedlund, Policy Director
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