[bc-gnso] RE: Updated draft for approval on 14-Jan: BC comment on Strawman Solution

[Phil Corwin <psc@xxxxxxxxxxx>]

I have no objection to the URS being referenced in the BC's comment letter if 
that is the consensus among members. However, if we are going to mention the 
URS I hope we will not be selective in noting the elements of the final BC/IPC 
recommendations (referenced below).
In particular, ICA would want to see mention of #2, that there be some 
substantive review even in default cases. Perhaps the best means of addressing 
URS would simply be to say that the BC wants improvements and to  attach the 
WG#2 recommendations as an appendix to the letter.





URS RECOMMENDATIONS - Working Group #2



  1.  Agreement that the TMCH should automatically tie into the URS with an 
easy-to-use interface so that brand owners need only validate their marks once, 
thus making URS complaints simpler and less costly and the URS process faster.


  1.  Agreement that even with a default judgment, there must be at least some 
substantive review of the elements that make up a successful complaint.  Simple 
failure to respond to a URS claim would not result in automatic judgment in 
favor of complainant without a showing that the complainant established a prima 
facie case (e.g., valid trademark, identical or confusingly similar domain 
name, no legitimate registrant rights, bad faith registration and use).


  1.  Agreement that if the Respondent (registrant) does not respond, the brand 
owner should pay only an administrative fee and not the fee required in a 
contested proceeding where a full substantive review of the response is 
required.


  1.  Agreement that successfully suspended domains (the entire string at issue 
-only) should become ineligible for future registration, in perpetuity.


  1.  Agreement that the URS must operate on a low- or no-cost basis, which 
ICANN should subsidize/underwrite if necessary.


  1.  Agreement that the requirement that the registrant pay a Response Fee 
should be expanded beyond the partial loser pays system for 15 or more domains 
in a single complaint (as currently in the Applicant Guidebook).  During 
negotiations we will discuss the various ideas proposed on our calls (e.g., a 
showing that a respondent/registrant has a history of URS/UDRP loses opens the 
door for full loser pays, regardless of how many domains are at issue in a 
complaint against that respondent/registrant).



Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
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Twitter: @VlawDC

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

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of 
Deutsch, Sarah B
Sent: Monday, January 14, 2013 8:00 AM
To: Steve DelBianco; bc - GNSO list
Subject: [bc-gnso] RE: Updated draft for approval on 14-Jan: BC comment on 
Strawman Solution

Steve,

Thanks for the good work on the comments.  I have two comments.  First, on the 
Claims 2 notice, I would urge the following change:  "Accordingly, the BC 
supports a reasonable fee for the notice service PROVIDED THE CLAIMS 2 NOTICE 
CONTAINS THE SAME INFORMATION AND AN ACKNOWLEDGMENT BY THE REGISTRANT AS THE 
CLAIMS 1 NOTICE"  Without this change, it could be misread to mean the BC 
supports the business community paying all the costs for a an ineffective 
notice.


The comments again appear to be silent on the changes we are seeking to the 
URS.  Even though that issue is on a separate track at ICANN, this paper seems 
to be the place to remind them of the substantive remedies the IPC/BC working 
group proposed as a key priority, such as a real loser pays model and a 
permanent suspension remedy.  I would urge at least a few sentences on the 
importance of making the URS a meaningful (and not just low cost) remedy.



Sarah


From: owner-bc-gnso@xxxxxxxxx<mailto:owner-bc-gnso@xxxxxxxxx> 
[mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Steve DelBianco
Sent: Sunday, January 13, 2013 9:29 PM
To: bc - GNSO list
Subject: [bc-gnso] Updated draft for approval on 14-Jan: BC comment on Strawman 
Solution

The attached update is for discussion and final approval during our 14-Jan 
member call.

I've updated the original draft per suggestions from Ron Andruff, John Berard, 
Elisa Cooper, and Sara Deutsch. A redline is also attached to show those 
changes from the 2-Jan draft.

The BC will submit these comments on 15-Jan.  We will also be able to submit 
Reply comments thru 5-Feb.


From: Steve DelBianco 
<sdelbianco@xxxxxxxxxxxxx<mailto:sdelbianco@xxxxxxxxxxxxx>>
Date: Wednesday, January 2, 2013 5:44 PM
To: bc - GNSO list <bc-gnso@xxxxxxxxx<mailto:bc-gnso@xxxxxxxxx>>
Subject: DRAFT for review: BC comment on Strawman Solution

BC members:

In Toronto , the BC/IPC/ISPC requested improved Rights Protection Measures 
(RPMs).  That prompted ICANN executive management to host follow-up meetings 
with multiple stakeholders.   As a result, ICANN posted a "strawman solution" 
for public comment 
(link<http://newgtlds.icann.org/en/about/trademark-clearinghouse/strawman-solution-03dec12-en.pdf>).
    Public comments are due by 16-Jan-2013.

Attached is a draft BC comment on the Strawman solution, based on prior BC 
positions and discussions, email exchanges with BC members, and initial review 
by the ex comm.

Per the BC charter, this draft is posted for 14 days of review and comment.  As 
soon as possible, please REPLY ALL with your suggested edits to these comments. 
  If any BC member objects to the BC filing the attached draft comment , please 
REPLY ALL and indicate your objection and reason.

We plan to finalize and submit these comments on 16-Jan-2013.

--
Steve DelBianco
BC vice chair for policy coordination

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