Re: [bc-gnso] UDRP Motions (competing) for GNSO Council call

["Zahid Jamil" <zahid@xxxxxxxxx>]

Thanks for this. Can I share these thoughts with Steve and an ongoing 
discussion about this with CSG Councillors?



                                       
Sincerely,

Zahid Jamil
Barrister-at-law
Jamil & Jamil
Barristers-at-law
219-221 Central Hotel Annexe
Merewether Road, Karachi. Pakistan
Cell: +923008238230
Tel: +92 21 5680760 / 5685276 / 5655025
Fax: +92 21 5655026
www.jamilandjamil.com


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-----Original Message-----
From: <icann@xxxxxxxxxxxxxx>
Sender: owner-bc-gnso@xxxxxxxxx
Date: Thu, 10 Nov 2011 11:17:23 
To: <bc-gnso@xxxxxxxxx>
Reply-To: <mike@xxxxxxxxxxxxxx>
Subject: RE: [bc-gnso] UDRP Motions (competing) for GNSO Council call

Thanks Zahid.  Curious to hear how the discussion went on the BC call this
morning on this issue.  

 

I have a feeling I may be a fairly lone voice, but fwiw, I support Mary's
motion over Jeff's.  Indeed it was a unanimous recommendation of the RAP-WG,
including a bunch of IP attorneys and reps (including me), to do a review of
the UDRP since it has been in place for ten years and has not been all that
effective as a deterrent against cybersquatting.  Waiting another 2.5 years,
or longer if the newTLD program is stalled, is not going to help anything or
anyone other than IP attorneys who charge many thousands of dollars to file
or defend UDRP cases (again, including me); . oh, and also the bad guys who
abuse the DNS and reputable brands with virtually no trouble and no
consequence.

 

Also I am not holding my breath waiting for URS implementation, as it may
never happen and even if it does come into some form or another, it is
unlikely to be used much if at all, particularly in just the first 18 mos.
after the first new TLD.  I fail to see how it will impact a review of the
decade-old UDRP in any way whatsoever.

 

Mike Rodenbaugh

RODENBAUGH LAW

tel/fax: +1.415.738.8087

http://rodenbaugh.com 

 

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of
Zahid Jamil
Sent: Thursday, November 10, 2011 7:19 AM
To: bc-gnso@xxxxxxxxx
Subject: [bc-gnso] UDRP Motions (competing) for GNSO Council call

 

Dear BC Members,

 

Here are two competing motions that have recently been posted to the Council
list for inclusion in the next GNSO Council call:

 

 

ROPOSED MOTION ON REVIEW OF THE UDRP  

 

Made by: Mary Wong (Non-Commercial SG)

 

Seconded by:   

 

     WHEREAS, on 3 February 2011 the GNSO Council adopted a resolution
requesting an Issue Report on the current state of the Uniform Dispute
Resolution Policy (UDRP) from ICANN staff, to include consideration of: (1)
how the UDRP has addressed the problem of cybersquatting to date, and any
insufficiencies/inequalities associated with the process; (2) whether the
definition of cybersquatting inherent within the existing UDRP language
needs to be reviewed or updated; and (3) suggestions for how a possible PDP
on this issue might be managed; 

 

     WHEREAS, a Preliminary Issue Report was prepared by ICANN staff and
released for public comment from 27 May 2011 to 22 July 2011, for which 24
community comments were received; 

 

     WHEREAS, further feedback was received in the form of responses by
various UDRP providers to a questionnaire issued by ICANN staff, a Webinar
conducted by ICANN staff, and two UDRP-related sessions held at the 41st
ICANN meeting in Singapore; 

 

     WHEREAS, a Final Issue Report taking into account the community
comments and public feedback received was prepared by ICANN staff and
published on 3 October 2011; 

 

     WHEREAS, the Final Issue Report illustrates a diversity of views among
the ICANN community as to a number of UDRP-related issues, such as: (1) the
advisability of commencing a PDP at this time rather than when the new
rights-protection mechanisms (RPMs) mandated by the new gTLD program (e.g.
the Uniform Rapid Suspension (URS) system) are reviewed; (2) whether the
UDRP, although improved over time in terms of consistency of application and
streamlining of processes, is fair; and (3) other matters such as whether to
launch a PDP or form an experts' panel, and whether more formal
accreditation or contracts between ICANN and UDRP providers is desirable; 

 

     WHEREAS, a PDP provides the best means for assessing how to respond to
this diversity of views, in particular because a PDP can be designed to
address concerns about the size and complexity of the UDRP review, such as:
(1) by identifying short-term issues that can be worked on during the launch
of the new gTLD program and up to the first review of the URS, and other
issues that may require a longer time frame for work, including any
process-related or current implementation problems; (2) the formation of
Sub-Teams within the Working Group to handle different issues, tasks and
timelines; and (3) the division of the PDP into work phases, including
possible issues and time frames corresponding to the new gTLD program, if
appropriate; 

 

     WHEREAS, the UDRP is the oldest GNSO policy that has yet to be
reviewed, and the further postponement of a PDP is unlikely to improve or
correct some of the flaws and problems with the current UDRP that were
identified by the ICANN community during the process of preparation of the
Final Issue Report; and 

 

     WHEREAS, the issue of community bandwidth and resource allocation may
not diminish even after the launch of the new gTLD program and the new RPMs,
and reviewing such a complex policy as the UDRP together with the URS is
likely to exert even more pressure on community bandwidth and resources; 

 

     Be it RESOLVED, that the GNSO Council approves the initiation of a PDP
on the UDRP and the establishment of a Working Group on UDRP Review; 

 

     RESOLVED, further, that the drafting team that will be formed and
charged with developing a charter for the Working Group on UDRP Review take
into account the diverse possibilities for Working Group modalities and work
phasing; and 

 

     RESOLVED, further, that the charter for the Working Group specifically
task the Working Group with considering: (1) related issues and
recommendations raised by the Post-Expiration Domain Name Recovery (PEDNR)
PDP Working Group, which were adopted by the GNSO Council as recommendations
to the ICANN Board of Directors at its meeting on 21 July 2011; and (2)
recommendation #7 of the IRTP Part B Working Group, which the GNSO Council
at its meeting on 22 June 2011 received and agreed to consider when it takes
up consideration of the Final Issue Report on the Current State of the UDRP;
and (3) such  other similar issues and recommendations as it considers
appropriate. 

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Competing Proposed Motion on the UDRP PDP

 

Made by: Jeff Neuman (Registries SG)

 

Seconded by: 

 

Whereas the Registration Abuse Policies Working Group submitted a final
report the GNSO Council on 29 May 2010 (see
http://gnso.icann.org/issues/rap/rap-wg-final-report-29may10-en.pdf),
recommending an issue report on the current state of the UDRP considering
both (a) How the UDRP has addressed the problem of cybersquatting to date,
and any insufficiencies/inequalities associated with the process, and (b)
Whether the definition of cybersquatting inherent within the existing UDRP
language needs to be reviewed or updated, and

 

Whereas, on February 3, 2011, the GNSO Council requested an Issues Report in
accordance with the recommendations of the Registration Abuse Policies
Working Group [LINK], and

 

Whereas, a Preliminary Issue Report was published on 27 May 2011 [LINK] and
series of webinars and workshops were held soliciting public comment to
allow for the ICANN community to provide feedback on the analysis and
recommendations contained therein, and

 

Whereas, a Final Issue Report was published on 3 October 2011 [LINK] in
which ICANN staff recommended the GNSO Council consider the "perspective of
the majority of the ICANN community, and the advice of the Government
Advisory Committee (GAC), and the At-Large Advisory Committee" and that "a
PDP be delayed until after the New gTLD Uniform Rapid Suspension System
(URS) has been in operation for at least eighteen months. . . [to] allow the
policy process to be informed by data regarding the effectiveness of the
URS, which was modeled on the UDRP, to address the problem of
cybersquatting."

 

RESOLVED, that the GNSO approved the initiation of a PDP and the
establishment of a Working Group on recommendation #7 of the IRTP Part B
Working Group concerning the requirement to lock a domain name subject to
UDRP proceedings, which the GNSO Council at its meeting on 22 June 2011
received and agreed to consider when it takes up consideration of the Final
Issue Report on the Current State of the UDRP.

 

RESOLVED further, the GNSO Council requests a new a new Issue Report on the
current state of all rights protection mechanisms implemented for both
existing and new gTLDs, including but not limited to, the UDRP and URS,
should be delivered to the GNSO Council by no later than eighteen (18)
months following the delegation and launch of the first new gTLD.

 

 

Sincerely,

 

 

Zahid Jamil

Barrister-at-law

Jamil & Jamil

Barristers-at-law

219-221 Central Hotel Annexe

Merewether Road, Karachi. Pakistan

Cell: +923008238230

Tel: +92 21 35680760 / 35685276 / 35655025

Fax: +92 21 35655026

 <http://www.jamilandjamil.com/> www.jamilandjamil.com

 

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