Re: [bc-gnso] BC statement on IRT

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

ICA supports George's alternative and dissents on the original text.
Philip S. Corwin
Partner, Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004
2026635347/Office
2022556172/Cell

"Luck is the residue of design." -- Branch Rickey 

----- Original Message -----
From: owner-bc-gnso@xxxxxxxxx <owner-bc-gnso@xxxxxxxxx>
To: George Kirikos <icann@xxxxxxxx>
Cc: BC gnso <bc-gnso@xxxxxxxxx>
Sent: Tue Jun 23 20:30:43 2009
Subject: Re: [bc-gnso] BC statement on IRT


i stand with George on this one.

mikey


On Jun 23, 2009, at 7:24 PM, George Kirikos wrote:

>
> 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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