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Re: [bc-gnso] BC statement on IRT

  • To: BC gnso <bc-gnso@xxxxxxxxx>
  • Subject: Re: [bc-gnso] BC statement on IRT
  • From: George Kirikos <icann@xxxxxxxx>
  • Date: Tue, 23 Jun 2009 20:24:15 -0400

Hello,

We do not support that proposed BC statement on the IRT. We propose an
alternative and balanced statement as follows:

----- start proposed statement ------
"The BC appreciates the effort of the IP constituency's work in
creating a proposal that would protect trademark holders interests.
However, much work remains to be done to ensure that the needs of
trademark holders are balanced against the needs of domain registrants
for certainty, predictability and due process. The BC looks forward to
working with the IP constituency, and other constituencies within the
GNSO on an improved version of the IRT's report, one that can achieve
consensus support of all stakeholders."
----- end proposed statement ------

As we have stated previously, we have grave concerns about the IRT,
and the "answers" provided by the members of the IRT team have been
spurious. To give just two concrete examples (there are many more if
one reads our prior comments submitted in the official comment
periods):

a) No good reason has been provided as to why the IRT proposes that
*all* domain names, irregardless of age, should be subject to the URS,
especially given that markholders ultimately would want the URS to
apply to legacy TLDs such as com/net/org. The URS is an extraordinary
procedure that would take down a domain name with short notice (so
short that a registrant on vacation may not receive actual notice of a
complaint). Such an extraordinary procedure should be targeted only
towards the most abusive domain names, one where "time is of the
essence." Time is not of the essence if a domain name is 10 years old!
The onus should be on markholders to not delay in bringing complaints
if there is truly a matter that is "urgent" and requires the URS. We
proposed that the URS either apply only to domains younger than a
certain age (e.g. 6 months), or that the time to respond to complaints
be a function of the age of the domain (e.g. 15 days + the age of the
domain in months). Businesses and consumers require certainty and due
process, and a system like the URS as proposed that would threaten
their legitimate domain name, one that they've owned for years, denies
them both certainty and due process.

b) No good reason has been provided as to why the IRT proposes to
limit notification to registrants to only 2 emails and 1 letter by
post for the URS. Email is unreliable given the amount of spam that
exists, and international mail might not be received in time to
respond to a complaint, given the slow delivery times of the
international postal system. We specifically pointed to opt-in fax as
a highly reliable system to notify registrants of complaints, and the
IRT provides excuses that leave objective people incredulous. Footnote
30 of the report stated:

"The IRT decided that such requirements would add significant
complexity and cost to the system due to time zones and national and
local laws regarding faxing and calling."

This is simply astonishing for the IRT to say, given that (a) the
faxes are 100% opt-in, and (b) the UDRP has been providing fax
notification for over 10 years without issues. The cost to send a
1-page fax notification of a complaint (using email to fax gateways)
is on the order of 10 cents, far below the postal delivery stamp fees.

A legitimate URS complaint by a markholder will not be impacted if the
registrant receives proper and timely notification (actual notice) by
fax. The URS was supposedly intended for "clear cut" cases, and
notification shouldn't impact the registrant's ability to defend a
"clear cut" case of abuse.

However, illegitimate and frivolous URS complaints with weak claims
that hope to win by default due to lack of registrant notification
will greatly benefit by lack of fax notification, lack of actual
notice. A legitimate registrant will strongly defend their domain name
and is hurt by lack of the ability to respond and prepare a defence.

The only logical conclusion is that the IRT has intentionally acted to
put the rights of illegitimate and frivolous URS complainants with
weak claims ahead of legitimate domain registrants with strong
defences, by putting up spurious obstacles to the domain registrants
receiving actual notice and due process. This is no surprise given the
IP's pro-complainant dominance of the IRT process.

While the IRT members posture in public that their report was a
"compromise" I hope it is clear from just the above two cases (and
there are more) that it truly was not any compromise, but was an
extreme and unbalanced report.

Legitimate domain registrants like my company and others in the BC and
other constituencies are prepared to work with the IP constituency to
come up with a balanced solution within the GNSO process. But, until
such time, the IRT report should continue to draw skepticism within
the ICANN community, and be rejected.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

P.S. One can read our early substantial comments on the IRT, indeed
with novel approaches (such as the concept of easements), that were
ignored by the IRT:

http://forum.icann.org/lists/irt-draft-report/msg00000.html
http://forum.icann.org/lists/irt-draft-report/msg00015.html
http://forum.icann.org/lists/irt-draft-report/msg00016.html
http://forum.icann.org/lists/irt-final-report/msg00000.html



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