[bc-gnso] Fw: New ICA Webpost from Singapore re: UDRP Reform

[Phil Corwin <psc@xxxxxxxxxxx>]

FYI, BC members who were not at yesterday's session on UDRP reform may find my 
remarks of interest. Feedback, as always, is welcome.
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
2025598597/Direct
2025598750/Fax
2022556172/Cell

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

From: Phil Corwin
Sent: Thursday, June 23, 2011 06:28 AM
To: Phil Corwin
Subject: New ICA Webpost from Singapore re: UDRP Reform

http://www.internetcommerce.org/node/277
ICA on the Record in Singapore on UDRP Reform
Submitted by Philip Corwin on Thu, 06/23/2011 - 09:19

On Wednesday, June 22nd a session was held at the Singapore ICANN meeting 
regarding “The Current State of the UDRP”, including the recently issued 
Preliminary Issues Report on the UDRP which is open for public comment until 
July 15th. That Report generally recommends that a Policy Development Process 
(PDP) should not be initiated on the UDRP -- but that if the GNSO determines 
that further inquiry is desirable, it should be confined solely to procedural 
and administrative matters, and the next steps should be undertaken by UDRP 
“experts”.
While ICA plans to file a formal comment on the Report, ICA Counsel Philip 
Corwin twice publicly addressed members of the panel conducting this session on 
behalf of ICA’s members.
The main points made in his remarks were:
• The coming proliferation of new UDRP providers, along with hundreds of new 
gTLDs, requires that ICANN enter into a standard agreement with all UDRP 
providers in order to assure that the application of the UDRP remains uniform 
and that new providers do not encourage forum shopping by complainants.
• Most of the important procedural and administrative issues of concern to 
registrants will naturally be addressed in the development of such a standard 
agreement.
• The development of such a standard agreement is unrelated to the new rights 
protections developed for new gTLDs and therefore need not and should not wait 
on experience with their use.
• The URS policy developed for new gTLDs should be regarded as a substantive 
aspect of UDRP policy and its application to incumbent gTLDs like .Com should 
not be considered until there has been substantial experience with it and an 
objective analysis undertaken and published based on that experience. 
Therefore, any consideration of imposing the URS on incumbent gTLDs should be 
deferred until at least summer 2016 – five years after the Singapore meeting.
• Any further steps on this matter must be open to participation by the entire 
ICANN community and not just confined to a small group of “experts”.
A transcript of his remarks, edited solely for accuracy and clarity, follows. 
The full transcript of the session as well as associated materials can be found 
at http://singapore41.icann.org/node/24551 --

>>PHILIP CORWIN: Thank you very much, Mary. I am Phil Corwin. I am counsel with 
>>the Internet Commerce Association. Speaking on their behalf, our members own 
>>or manage about 20 million domains, about one out of every ten domains 
>>currently registered, so we have a significant interest in this topic.
I will be quite brief.
The UDRP is pretty good, but there is nothing that can't stand to be improved, 
and there's nothing that should be forbidden to be looked at after a dozen 
years of use.
I think there's a big issue being ignored here, which is the most important 
word in UDRP, which is "uniform."
We are entering a new world of not just proliferating gTLDs but proliferating 
UDRP providers. There have been applications not yet acted on during the last 
two years, one from a group in India, one from a group in Jordan. There will be 
more.
The WIPO-NAF duopoly that has existed over the last dozen years is going to 
continue to erode and the only way to assure uniformity in the UDRP process is 
to establish a standard agreement between ICANN and the providers. And that is 
not only needed to assure uniformity, but it's also just unconscionable that 
ICANN empowers entities with the power to extinguish, suspend, or transfer 
valuable, intangible assets that deserve as much consideration as trademarks 
without any agreement that sets -- that both gives them the power and sets 
limits on the power and sets procedural rules for the exercise of that power.
So we believe that that -- Let's not get into a substantive discussion of 
changing the substance of the policy, because we all know that's going to 
immediately bog down and be nonproductive.
Most of the issues that people are concerned with, administrative and 
procedural issues, can be addressed in the context of developing a standard 
agreement.
Finally, I want to mention the URS. It's our view that we think -- I don't want 
to say hypocrisy, but we see a great inconsistency of statements, certain IP 
interests saying you can't consider any substantive change in the URS, yet 
twice in the last two months -- on the dot net renewal and on relaxing vertical 
integration for existing gTLDs -- we have seen IP interests say that should be 
accompanied by imposing the URS on dot com and dot net and on the 110 million 
domains registered at them. We believe adding URS -- it may be a supplement to 
the UDRP, but it is a major substantive change in the structure, so we would 
suggest that a good time to discuss adding the URS to the UDRP would be at this 
meeting, the midyear meeting of ICANN, in 2016. That's five years from now, and 
I will tell you why. We won't see any new TLDs, gTLDs, added to the root until 
the beginning of 2013. The initial six months are going to be sunrise and all 
of that. We won't see URS even begin to be used until late 2013. We need at 
least two years of experience with it, and then an objective study. And then we 
can have that discussion after that study, which would be 2016.
>>JONATHAN COHEN: Thank you very much.
>>PHILIP CORWIN: Thank you very much.
>>JONATHAN COHEN: I understand all these positions --
>>PHILIP CORWIN: My question is what do you think of that?

>>PHILIP CORWIN: Yes. Thanks again. I thought Kristine had an excellent 
>>formulation for how to generally decide what's substantive and what's 
>>procedural, which is, if it changes the policy, substantive. If it deals with 
>>the rules, procedural and administrative. And I think the type of thing I've 
>>been advocating, which is a standard agreement on the procedural and 
>>administrative side, there is no need to wait for experience with the new 
>>RPMs. It's a separate issue. Not only is it unrelated to however the new RPMs 
>>turn out, but there is, as I said, a need -- I remember looking at the 
>>application last year from the group in Amman, Jordan, and looking at the 
>>background of their preliminary panelists. Many of them had no prior 
>>experience with the UDRP. We're not just going to see new providers but new 
>>panelists. That's why we need something from ICANN to the providers that 
>>empowers them, that sets limits to their authority, and that provides 
>>enforcement mechanisms if they exceed their authority. Because, frankly, my 
>>members are concerned that new providers will try to gain market share by 
>>encouraging forum shopping by complainants by taking a more favorable 
>>approach in certain cases.
I think this is good for WIPO, too. WIPO, clearly, as NAF defers to WIPO on the 
panelists guide, that is the starting point for consistency and uniformity in 
providing the UDRP and a contract should talk to WIPO's not preeminent but lead 
role in this whole area.
The one other thing I would say is that, if anything is done going forward, 
what's been done so far by experts is great. But the suggestion that anything 
going forward should be just experts, that's not the ICANN way. We need experts 
involved. We need experts providing the base knowledge and experience. But it 
has to be open to the entire community. That's the way we should continue to 
operate. Thank you.
>>JONATHAN COHEN: Thanks, Phil. That was good.



Philip S. Corwin, Founding Principal

Virtualaw LLC

1155 F Street, NW

Suite 1050

Washington, DC 20004

202-559-8597/Direct

202-559-8750/Fax

202-255-6172/cell



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