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

[Jon Nevett <jon@xxxxxxxxxx>]

Sarah:

Sorry if I was unclear.  The intent of the IRT was to have the same legal 
standard for the UDRP and URS (the same elements -- registration with bad fait 
intent, etc.), but having a higher burden of proof (clear and convincing vs. 
preponderance.

Here are the relevant quotes from the IRT report -- 
http://www.icann.org/en/announcements/announcement-4-29may09-en.htm

"The Final Evaluation analysis involves consideration of three basic issues, 
similar to the standards for a UDRP decision, but requires a much higher burden 
of proof." (emphasis added)

"If the Examiner finds that all of these elements are satisfied by clear and 
convincing evidence and that there is no genuine contestable issue, then the 
Examiner shall issue a decision in favor of the Complainant." (emphasis added)

http://www.icann.org/en/announcements/announcement-4-29may09-en.htm

These positions had a unanimous consensus of the IRT.  Not sure the relevance 
of my status on the IRT, but for the record I was told by the IPC that I wasn't 
representing registrars on the IRT.  If you had heard the crap that I got from 
my former registrar colleagues, you would understand that I definitely wasn't 
representing them on the IRT :-).

As I don't believe that the BC complained about this burden of proof in the 
past on the IRT, on the STI, or any public comments thereafter, I don't think 
that we should raise it here.  If we think that the URS was changed in a way 
that is problematic, let's focus on those changes instead of trying to go back 
on issues that had complete consensus and haven't changed at all.

Thanks!

jon



On Jul 19, 2010, at 2:39 PM, Deutsch, Sarah B wrote:

> 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
>