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

["Deutsch, Sarah B" <sarah.b.deutsch@xxxxxxxxxxx>]

Jon,
 
Thank you for your many constructive changes.  I want to respond to one
suggested edit you made below:
 
*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.  

 
1.  I don't disagree that the URS, like the UDRP, should be used for
slam dunk cases.  I'm glad you confirmed that the legal standard was
supposed to be exactly the same.  It's my understanding that proof under
the UDRP is in fact based on a preponderance of the evidence standard,
not a clear and convincing evidence standard.  See below.  
 
Section 1.3.1.1 - Burden of Proof (How much proof is necessary?) 

In the administrative proceeding, the Complainant must prove that each
of the three elements contained in Section 4(a) of the Policy are
present.

Comment:  In general, the Panels recognize a preponderance of the
evidence standard.  Preponderance of the evidence means that a fact is
proved when it is more likely than not that the fact is true.

2. Rather than delete this sentence in its entirety, I would recommend
inserting back in the following single sentence: "The BC recommends that
while the URS is intended to deal with "slam dunk," cases, we ask ICANN
to clarify that the legal standard remain the exactly the same as that
found in the UDRP.  ICANN should clarify that while proof of bad faith
must be clear, the evidence generally can be established by a
proponderance of evidence standard."

3.  I know that you were a valuable member of the IRT and at that time
you were representing registrars' views.  Other IRT members point out to
me one additional point.  The "slam dunk" aspect of the URS was in
exchange for a quick and cheap process.  No one knows how cheap this
will wind up being, but there is no question that the "quick" part of
this trade off has disappeared.  Many IRT participants confirm that the
DAG4 doesn't represent anything akin to the deal they thought they had
struck.  

 
Sarah


Sarah B. Deutsch 
Vice President & Associate General Counsel 
Verizon Communications 
Phone: 703-351-3044 
Fax: 703-351-3670 

 

________________________________

From: Jon Nevett [mailto:jon@xxxxxxxxxx] 
Sent: Sunday, July 18, 2010 9:40 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