3 strikes and your out policy needs to be changed

["Michael H. Berkens, President" <mike@xxxxxxxxxxxxxxxxxxxxx>]

To the ICANN Board:


We respectively submit our comments on the Guidebook v5
Section 1.2.1 of the Final AG now states in part:

ICANN will perform background screening in only two areas: (1) General business 
diligence and criminal history; and (2) History of cybersquatting behavior. 

Applicants with confirmed convictions of the types listed in (a) – (k) below 
will be automatically disqualified from the program.

Circumstances where ICANN may deny an otherwise qualified application include, 
but are not limited to instances where the applicant, or any individual named 
in the application:

k. has been involved in of a pattern of decisions indicating that the applicant 
or individual named in the application was engaged in cybersquatting as defined 
in the UDRP, ACPA, or other equivalent legislation. Three or more such 
decisions with one occurring in the last four years will generally be 
considered to constitute a pattern.

While we support the general policy that repeat intentional infringers of 
intellectual property rights should not be eligible to apply for new gTLDs, we 
strongly believe that the approach taken by the Final AG in this regard in 
unreasonably inflexible and fails to even take the entire UDRP process into 
account.

It also fails to contain equivalent sanctions for complainants who abuse the 
UDRP process.

Under the Guidebook a domain holder that loses 3 UDRP in 4 years would be 
placed into the same category as Convicted Murderers, Rapists and child 
molesters.

The loss of a UDRP arbitration is not equivalent to a “conviction”.

You have no right in a UDRP to make an oral argument, you do not have a right 
to call witnesses nor do you have the right to cross examine and question the 
other party.

We also know that UDRP's panelist decisions are inconsistent at best for those 
cases where there is a real issue.
The shortcomings of the current UDRP system were recently noted by ICANN’s 
Business Constituency (comment at 
http://forum.icann.org/lists/acdr-proposal/msg00004.html ), citing “increasing 
concerns about the lack of adequate procedural and substantive consistency in 
the UDRP process” as its rationale for opposing accreditation of any new UDRP 
providers until ICANN enters into a standard agreement with all UDRP providers 
“as that is the only means of furthering the goal that UDRP decisions are 
consistent within and among UDRP providers”.

The inflexible “three strikes” rule proposed in the Final AG fails to take into 
account the gross shortcomings in the present administration of the UDRP.

Second, this proposal needs to take into account the size of the domain 
portfolio owned 

Clearly, while the loss of three UDRPs against a portfolio of 300 domains (one 
out of one hundred) might constitute rebuttable but not conclusive evidence of 
intentional infringement (given the lack of consistency in UDRP 
administration), three losses against a portfolio of 300,000 names (one out of 
one hundred thousand) constitutes no such evidence.

Of course there is no true appeal of a UDRP.  

The domain holders only recourse if they lose a UDRP is to file a case in a 
court of competent jurisdiction to stop the transfer of the domain name and to 
get a declaratory judgement that no trademark infringement took place.
Let me chat specifically about our company, Worldwide Media, Inc.

We started registering and buying domain names in 1997 and currently own 
approximately 75,000 domains.

Over the 13 years we have been involved in domaining, we have had 7 UDRP filed 
against us.

We have won 6 of them.

In the one UDRP we lost we filed suit in Federal Court and in the process of 
the federal case we settled with the party that brought the UDRP, resulting in 
the the filing a stipulated judgement to the effect that we did not infringe on 
their trademark and that the decision of UDRP was improper with a cash payment 
made by the Complainant of the UDRP to our company.

Yet that UDRP is still on the record and is still a strike against us.

Even if had we taken the case to trial and gotten a judgement of the court in 
our favor, the UDRP would still be on the record as a loss, even though we 
ultimately won.

So if we lose 2 more UDRP's out of 75,000 domains within the next few years we 
would be labeled a cybersquatter under the Guidebook and we would be 
disqualified from owning a gTLD registry or being a director or officer thereof.

To make matters worse, a study which looked at typo domains on servers which 
hosted more than 1,000 domains, released this year found that our company which 
uses Mostwanteddomains.com as our servers, had one of the 25 lowest instances 
of typo domains in the world.

So with one bad UDRP decision under our belt (which ultimately resulted in our 
company receiving a cash payment for the transfer of the domain) if we get 
stuck with 2 more bad decisions in the next few years, we would be barred under 
the Guidebook despite having been designated as having one of the 25 cleanest 
domain portfolios.

http://www.benedelman.org/typosquatting/bottom25kns.html

Please also see:


http://www.thedomains.com/2010/11/14/icann-new-guidebook-terrorists-now-ok-domainers-3-strikes-youre-out/

http://www.thedomains.com/2010/06/27/sticky-points-on-new-gtlds-terrorists-territories-trademark-violators-are-worse-than-child-murders/

It would seem a more reasonable approach would give credit to domain holders 
for UDRP wins, maybe something as simple as a plus and minus system where a 
UDRP win is a plus 1 and a loss is a minus 1 with a percentage of total domain 
ownership as the baseline for determining abuse.

I would suggest a 1% net loss rate compared to the total of domains registered 
as being the disqualifying mark.
In addition to these gross shortcomings, the proposed treatment of 
cybersquatting is also unbalanced in that there is no prohibition against 
complainants who regularly abuse the UDRP process from being eligible to apply 
for a new gTLD. Surely such repeated abuse of process  in an attempt to 
illicitly obtain a legitimately registered and used domain – to steal it, in 
effect –and should be regarded as a “crime of trust” bearing upon eligibility. 
We therefore propose that the background check criteria be further amended to 
bar any individual or business entity that has lost a similar percentage or 
number of UDRP decisions to be declared ineligible to be a new gTLD applicant.




Michael H. Berkens

President
Worldwide Media, Inc.

http://www.MostWantedDomains.com

http://www.WWMI.com

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