RE: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

ICA believes that John's redraft is a significant improvement in many ways.

However, we do continue to have some concerns about the URS section, 
specifically:

  *   We can't support the transfer option, as suspension versus transfer was 
one of the major distinctions between URS and standard UDRP as originally 
proposed by the IRT -- that is, URS was supposed to be for rapid, lower cost 
blocking of a domain in slam dunk cases, with UDRP reserved for less clear cut 
cases as well as instances where the complainant wished to permanently acquire 
the domain. We think it's important to preserve that distinction and that 
problems with the use of the UDRP for default cases should be addressed by 
comprehensive UDRP reform.
  *   We don't agree that the language asserting that the "impact" test is too 
low for a finding of abuse of process. The exact language now in the DAG is --

            "An Examiner may find that Complaint contained a deliberate 
material falsehood if it

            contained an assertion of fact, which at the time it was made, was 
made with the

            knowledge that it was false and which, if true, would have an 
impact on the outcome on

            the URS proceeding."



What this says is that if a complainant deliberately lied about a material fact 
in order to influence the outcome of a URS in its favor it will suffer a 
penalty in order to protect the integrity of the overall process. The penalty 
for one such deliberate lie is being suspended from using the URS for one year; 
the penalty for two such lies is permanently barring it from use of the 
process. Now, as a practical matter, it will be the rare case where the 
examiner is able to conclude that the complainant deliberately misrepresented 
material facts, so this isn't going to happen very often, plus there are no 
monetary sanctions - including fines or a requirement that the complainant pay 
the registrant's costs of defending the domain - so it isn't as severe a 
pernalty as some called for it to be. If the BC is going to say that the impact 
test is too low (with which we don't agree) then I think it has some 
responsibility to propose an alternate tests that protects the integrity of the 
URS against the (hopefully rare) complainant who deliberately seeks to abuse it.





As a typographical matter, the last portion of the last sentence of the first 
URS paragraph should read "less certainty for the complainant using this 
process", not "registrant".



Finally, we appreciate the serious and civil debate that has been taking place 
within the BC on this matter -- this is precisely what should occur within a 
constituency to bridge differences in perspective.


Philip S. Corwin
Partner
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004

202-347-6875 (office)

202-347-6876 (fax)

202-255-6172 (cell)

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

________________________________
From: Jon Nevett [jon@xxxxxxxxxx]
Sent: Sunday, July 18, 2010 9:39 PM
To: Zahid Jamil
Cc: 'Deutsch, Sarah B'; Phil Corwin; michaelc@xxxxxxxxxxxx; mike@xxxxxxxxxx; 
jb7454@xxxxxxx; randruff@xxxxxxxxxxxxxxx; ffelman@xxxxxxxxxxxxxxx; 
bc-GNSO@xxxxxxxxx
Subject: Re: Re[2]: [bc-gnso] DRAFT BC Public Comments on DAGv4

Folks:

Attached is a suggested redraft to bridge the gap.  I personally don't agree 
with some of the arguments I left in the attached, but I tried to keep the 
longstanding BC positions while toning down the anti-TLD language.  I also 
deleted a couple of the arguments that were objected to in some of the notes I 
reviewed.

Here are some of the highlights:

*I deleted the GPML section.

*I deleted the clear and convincing evidence issue with regard to the URS.  As 
a member of the IRT, I can say that it clearly was our intent for the URS to 
have a higher burden of proof  than the UDRP -- the legal standard is exactly 
the same.  We wanted the URS to be for "slam dunk" cases.  The URS was to be a 
less expensive alternative to the UDRP cognizant of the fact that 70% of UDRPs 
go unanswered.  Has this issue even been raised before by the BC?

*Based on Sarah's helpful e-mail, I left alone the complaint about transferring 
names after a successful URS as that has been an issue that Zahid, Mike and 
others in the BC have argued consistently.  I do note, however, that transfer 
was not in the IRT recommendation and the STI agreed to add a year to the 
registration at the request of the complainant as a compromise.

*Again based on Sarah's e-mail, I left the PDDRP section pretty much alone 
except for an argument about registries warehousing names, but not using them, 
as that argument didn't make much sense to me.  That's exactly the function of 
a registry to warehouse names until they are sold by registrars.  If a registry 
"reserves" a name and it is not in use at all, the mark holder should be 
thrilled that it can't be registered by a squatter.

*I also deleted the paragraph about the Director of Compliance.  I don't think 
it appropriate to comment on those kinds of personnel matters.

*I didn't touch the arguments related to community and 13 points (though I 
personally favor 14 points to avoid gaming -- sorry Ron), as that seems to be 
longstanding BC position.

*I didn't do much on the Market Differentiation section either other than 
soften some of the language.

I have no idea if my attempt will get consensus or not, but I thought it 
worthwhile to offer alternative language and I tried hard to find a balance.

Thanks.

Jon