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

[Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>]

ICA generally supports and has no objection to the proposed BC position 
statement urging orderly rollout of new gTLDs.


As previously stated, in regard to the rights protection piece, we:

  *   Object to going beyond the IRT recommendation for the URS by providing a 
domain transfer option, as this blurs any real distinction from the standard 
UDRP process.
  *   Believe it is appropriate to sanction complainants who abuse the URS by 
deliberately asserting material misstatements of facts, and believe that the BC 
has a responsibility to better explain why such an impact test is too low as 
well as propose a substitute test that preserves the integrity of the URS.
  *   Object to the inclusion of "typographical variations" for the TM 
Clearinghouse unless the BC can articulate objective and reasonably narrow 
standards for the limits of such variations.



We are also disappointed that the BC statement does not include any language 
that builds on the RAPWG recommendation for initiation of a balanced and 
comprehensive UDRP PDP to achieve beneficial reforms for all parties across the 
entire gTLD space.



We also urge that there be some polling of BC members in regard to the rights 
protection piece to determine whether there is significant consensus within the 
constituency for retaining these positions in a post-STI environment.



Thank you for consideration of our views.






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: owner-bc-gnso@xxxxxxxxx [owner-bc-gnso@xxxxxxxxx] on behalf of Ron 
Andruff [randruff@xxxxxxxxxxxxxxx]
Sent: Monday, July 19, 2010 11:13 AM
To: bc-GNSO@xxxxxxxxx
Subject: [bc-gnso] RE: UPDATED DRAFT BC Public Comments on DAGv4

Dear colleagues,

Pursuant to the comments that have been sent in, as rapporteur for this 
process, I have incorporated the amendments and prepared two final documents 
for your review and comment.  Two documents, insomuch as I broke the original 
comments into two separate postings so that the BC membership can work through 
the issues accordingly.  As Philip Sheppard noted, the BC must post its 
comments in line with past positions.  Splitting the documents hopefully 
enables focused discussion on the RPM piece without impeding posting the other 
comments.

The first document incorporates a slimmed down version of the original comments 
I posted last week on the issues of ‘market differentiation’, ‘translation of 
ASCII to other scripts’ and ‘revised community priority evaluation scoring’, 
with the BC’s DAGv3 comments attached for reference.  It should be noted that I 
have made no material changes in these comments; rather I simply tightened up 
the arguments and cleaned up typos, etc.

The second document is effectively Jon’s edits on RPMs.  I have made no changes 
to his edition other than made the correction (‘complainant’ vs. ‘registrant’) 
that Phil Corwin noted in his recent posting to the list.

Once again, I welcome comments/amendments to finalize these two documents for 
posting.

Kind regards,

RA

Ronald N. Andruff
President

RNA Partners, Inc.
220 Fifth Avenue
New York, New York 10001
+ 1 212 481 2820 ext. 11

________________________________
From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
Phil Corwin
Sent: Monday, July 19, 2010 10:39 AM
To: Jon Nevett; Zahid Jamil
Cc: 'Deutsch, Sarah B'; 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

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