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RE: [bc-gnso] For review / approval by 28-Oct: BC Comment on Accreditation of UDRP providers

  • To: Steve Delbianco <sdelbianco@xxxxxxxxxxxxx>, bc - GNSO list <bc-gnso@xxxxxxxxx>
  • Subject: RE: [bc-gnso] For review / approval by 28-Oct: BC Comment on Accreditation of UDRP providers
  • From: Marilyn Cade <marilynscade@xxxxxxxxxxx>
  • Date: Thu, 14 Oct 2010 23:10:02 -0400

These comments are offered as a member of the BC, in my private capacity.
First, I think that we need to continue to develop our BC comments in a 
positive tone, with a consistent 'look and feel', and with a view to 
leadership. Secondly, I provided some suggestions to the authors. However, I am 
not wedded to my language, but I am wedded to supporting that the BC's comments 
should show leadership.I know that was the intent, and hope that my suggestions 
might contribute to that approach. 
It is great to see such rapid turn around to get something out to members for 
consideration. 
Thanks, Phil, and Steve. I do have a question. Would you expect to freeze the 
document at some point, so that mmbers can respond to a final version?
Marilyn Cade

From: sdelbianco@xxxxxxxxxxxxx
To: bc-gnso@xxxxxxxxx
Subject: [bc-gnso] For review / approval by 28-Oct:  BC Comment on 
Accreditation of UDRP providers
Date: Fri, 15 Oct 2010 02:03:00 +0000




Message body


This draft comment is being circulated today (14-Oct) so that BC members will 
have 14 days to review, revise, and consider approval before the ICANN deadline 
of 28-Oct-2010.  



The attached comment was drafted by Phil Corwin and was polished for submission 
by Mike Rodenbaugh.  Phil’s original note is shown at the bottom of this email, 
and contains some contextual material that may be helpful in your consideration 
of this draft. 



This draft comment is in response to ICANN’s proposal to recognize a new domain 
name dispute provider.   For background on this proposal, see below, or at 
http://icann.org/en/public-comment/#acdr-proposal 



Explanation/Background: ICANN has received a proposal from the Arab Center for 
Domain Name Dispute Resolution (ACDR) to be recognized as one of the official 
dispute resolution providers under the UDRP. The proposal was submitted 
pursuant to the process specified at 
http://www.icann.org/en/dndr/udrp/provider-approval-process.htm.



The ACDR is jointly established by the Arab Intellectual Property Mediation and 
Arbitration Society (AIPMAS) and the Arab Society for Intellectual Property 
(ASIP), with headquarters in Amman, Jordan and additional offices in other Arab 
Countries. Both the AIPMAS (established in 1987) and ASIP promote the 
activities of the Arab Center of Mediation and Arbitration, established in 
2003, active in resolving conflicts related to intellectual property through 
international arbitrators. If approved, the ACDR would be the first Approved 
UDRP Dispute Resolution Service Provider headquartered in an Arab state.



At its 5 August 2010 meeting, the Board approved staff’s recommendation to 
publish the ACDR proposal for a public comment for a period of not less than 30 
days.



Upon completion of the public comment period, ICANN staff will analyze the 
comments received and evaluate further recommendations to the Board on 
proceeding with the ACDR proposal.



The proposal and relevant annexures are at:

ACDR Proposal [PDF, 156 KB]

Annex 1 – ACDR Initial List of Panelists [PDF, 176 KB]

Annex 2 – ACDR Screening Process [PDF, 8 KB]

Annex 3 – ACDR Supplemental Rules [PDF, 100 KB]





----- Forwarded Message

From: Phil Corwin <pcorwin@xxxxxxxxxxxxxxxxxx>

Date: Thu, 14 Oct 2010 14:54:47 +0000

To: Marilyn Cade <marilynscade@xxxxxxxxxxx>, bcprivate <bcprivate@xxxxxxxxxxxx>



Thanks to you, Steve, Sarah, Ron, Mikey, Chris and everyone else who put in 
place and participated in Tuesday's meeting of the Business Constituency. It 
was very worthwhile and hopefully will be an annual event.



During the policy portion of the meeting I noted that there is a pending 
request for comment regarding the application of the Arab Center for Domain 
Name Dispute Resolution (ACDR) to become a certified UDRP arbitration provider. 
ACDR is located in Amman, Jordan; The comment period closes on October 28th.



Steve invited me to provide further details, and this e-mail takes up that 
offer. I don't yet have an ICA comment letter to share that has been approved 
by the ICA Board, but I can provide this background --



I noted that the ICA intended to oppose approval of this application at this 
time on the grounds that no new UDRP providers should be accredited until ICANN 
implements a standard contract with all accredited providers or finds some 
other mechanism for establishing uniform rules and procedures and flexible 
means of delineating and enforcing arbitration provider responsibilities.



Let me make clear that ICA's opposition will not be based in any way on the 
fact that this particular applicant is "Arab" and is located in the developing 
world. There were recent reports that an Indian organization is contemplating a 
similar application, and it may yet do so -- and ICA would take the same 
position in regard to them -- as we would in regard to any applicant from the 
US, EU, or any other part of the developed world. Nor are we  necessarily 
alleging that ACDR or its proposed panelists are lacking adequate professional 
credentials (we are still reviewing all of their supporting documents). That 
said, future UDRP providers are likely to be located in jurisdictions that have 
different local legal cultures, and this make it even more important to have a 
standardized governing document to keep the "uniform" in UDRP.



The problem is this -- it makes absolutely no sense to require that domains be 
registered or renewed via ICANN-accredited registrars who are under a standard 
contract (the RAA) but then provide that you can have your domain transferred 
away through a process administered by an organization that has been granted 
this power by ICANN -- yet is under no contract that defines its practices and 
procedures, is not subject to any regular or standardized review by ICANN, and 
for which ICANN's only disciplinary tool is accreditation revocation (so 
extreme a sanction that it is unlikely to ever be used). 



I would think that everyone in the Business Constituency would understand the 
importance of a contractual relationship that defines and constrains this grant 
of power, and provides flexible and effective enforcement mechanisms, because 
that delegated power can extinguish substantial monetary investment and 
goodwill in a domain. Granting this kind of power absent any restraints is not 
an accountable practice.



As I noted yesterday, this is not just a domain investor/developer issue. We 
appear to be transitioning from a DNS that featured an effective duopoly of 
UDRP providers (WIPO and NAF) and in which all significant gTLDs were based in 
the developed world -- to one in which the majority of gTLDs may well be 
headquartered in nontraditional jurisdictions. Business interests may well be 
investing substantial amounts in these new gTLDs, for both defensive and new 
branding purposes. In this type of environment it is even more important that a 
proliferating cast of UDRP providers be subject to uniform and enforceable 
responsibilities, as that is the only means of assuring that UDRP decisions are 
consistent within and among UDRP providers, and that the UDRP remains an 
expedited and lower cost means of addressing cybersquatting.



Let me conclude by noting that this issue of whether UDRP providers should be 
under standard contract with ICANN is almost entirely separable from the 
question of whether the UDRP evaluation standards for determining the existence 
of cybersquatting should be reformed. That latter issue is a more complicated 
matter, and ICA recently suggested to ICANN that it should undertake an expert 
and impartial study contrasting trends in Internet trademark law decisions in 
major jurisdictions with trends in UDRP practice in order to provide a common 
foundation of information to inform any broader UDRP reform effort. There is no 
need to debate the substantive elements of the UDRP in order to address the 
fundamental issue of whether UDRP providers should be under standardized 
contract.



 I realize that it is difficult for the BC to reach consensus or act quickly. 
But I would ask fellow members to start thinking about this issue of whether 
you want  expanded ranks of UDRP providers to be able to decide disputes 
involving your domains registered in hundreds of new gTLDs located in multiple 
national jurisdictions without being under contract in that role. 



 If the BC is unable to oppose this particular application I would at least 
hope we could achieve a consensus statement expressing concern about the lack 
of a contractual relationship between these providers and ICANN.



Thanks to my fellow members for taking this under advisement -- and thanks 
again to all who contributed to yesterday's event.

Regards to all,



Philip



Philip S. Corwin

Partner 

Butera & Andrews 

Washington, DC 20004

202-347-6875 (office) 

202-347-6876 (fax)

202-255-6172 (cell)

                                          

Attachment: DRAFT BC-MSC- Comment on recognizing new dispute provider.doc
Description: MS-Word document



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