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Comments on Dispute Resolution Procedures

  • To: 2gtld-dispute@xxxxxxxxx
  • Subject: Comments on Dispute Resolution Procedures
  • From: Eric Brunner-Williams <ebw@xxxxxxxxxxxxxxxxxxxx>
  • Date: Mon, 13 Apr 2009 22:32:58 -0400 Morality and Public Order Objection at 3-3. Staff invites further public comment on this problem. Reluctently, we must point out that Wikileaks has published the blacklists for Thailand, Denmark, Norway, Australia and Germany, and China and the United Arab Emirates ban Wikileaks, DENIC apparently suspended wikileaks.de without notice on the 9th of this month, and wikileaks.org was temporarily disabled by a California judge following an ex-parte hearing by the Julius Baer bank.

We believe that if wikileaks submits an application that no objection arising from this section is proper. Community Objection at 3-4.

3.1.3 Dispute Resolution Service Providers at 3-4. The cost for each form of objection has been represented as being vastly less for "legal rights" than for "community" objection. Fundamentally, private claims through trademark are protected at vastly less cost to the private right claimant than the public claims of communities to a right in their own name. This is absurd. We recommend staff explore alternatives to the International Chamber of Commerce for two reasons. First, because as a business interest advocacy organization it is unable to act responsibly as a non-business interest advocacy organization, which is what evaluating community objections entails. Second, because the fees paid by entities with standing to file community objection should not be captured by a business advocacy organization.

We recommend that staff put reasonably similar numbers for the costs of each form of objection so that we don't end up with all objections filed creatively as "legal rights", or turning "community" objections into a fiction.

3.1.4 Options in the Event of Objection at 3-5. The final para seems to suggest that if, for any reason, an applicant does not file a response, and we don't know if this means to every instance of multiple objections asserting the same substantive basis for objection, that without reference to the merits of the the objection, and there may be none at all, the objector prevails. We shouldn't be this careless about the outcomes of a battle-of-the-forms mechanism.

3.1.5 Independent Objector at 3-5. This section appears to create a singular role, and limit the scope of this single person to apparantly costless recourse to the International Chamber of Commerce resolution service.

First, it is unlikely to be necessary to insist that Independent Objector (IO) is unaffiliated with any gTLD applicant. The requirement is for "considerable experience and respect in the internet community", and independent authority to act, or not act, as she or he sees fit, in the public interest. Anyone meeting that test is unlikely to be (a) affiliated with an objectionable application or (b) care in the slightest how the outcome of an objection, or non-objection affects an application she or he actually is affiliated with.

Second, we want staff to work through the numbers. Where is the budget coming from? Is the Independent Objector allocated some budget, some number of high cost filings at the International Chamber of Commerce quoted fee? Is she or he really independent of staff and Board direction, or is the available budget the actual control over the freedom of action of this role?

Third, as Werner Staub will comment, the Independent Objector should be able to bring objections under a claim of "Excessive External Costs". The IO's grounds for objecting should be expanded to include the disproportionate imposition of costs by an applicant on other applicants and non-applicants. When Verisign started doing wildcard matching (aka "Sitefinder"), significant cost was externalized to mail transport agency operators. We should be able to pick these things off when we see them, and not have to wait until they are operationalized and actually causing cost to others.

3.3 Selection of Expert Panel at 3-12. The qualifications of the expert in proceedings involving a community objection are unstated.

3.3.7 Dispute Resolution Costs at 3-13. See the comments to 3.1.3, above.

3.4.1 String Confusion Objection at 3-15, footnote 2. The comment to String Confusion Review at p2-4, submitted as Comments on Evaluation Procedures, applies to this footnote. Unless a GNSO Council or ICANN BoD cite can be found authorizing staff to expand the scope of tests for similarity from "visual" to "visual plus something else", this new text must be withdrawn.

3.4.2 Legal Rights Objection at 3-15. The expansion from "trademark" to "registered or unregistered trademark" is helpful, however I suggest to staff that adding "indigenous intellectual property" or "traditional knowledge" or "community common property" would be helpful in two respects. First, in expanding the legal protections recognized by contract, and second allowing most community objections access to the lowest cost objection mechanism.

3.4.4 Community Objection at 3-19. The satisfaction of the standing requirement by the applicant is asserted to be a complete defense to objections brought by parties meeting the same standing requirement. What this means is that where the objector has standing greater than the applicant, and there really is no need to inquire into the substantive issues, the objector's substantive claim can be evaluated, but where both applicant and objector have standing, and there is most need to inquire into the substantive issues, the objector's substantive claim will not be heard. This is an absurd outcome.

I work for CORE, CORE will submit applications, so this interest in the outcome should be included in my comment.
Eric Brunner-Williams

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