Re: [bc-gnso] UPDATE: FOR REVIEW AND VOTE: Alternative positions for ACDR proposal as UDRP Provider

[Nat Cohen <ncohen@xxxxxxxxxxx>]

As I'm sure everyone on this list fully realizes, accrediting a new UDRP
provider is no trivial thing.  Any panelist authorized by the ACDR will be
empowered to order the transfer of any of over a hundred million gTLD
domains.

The UDRP is not only being used to go after cybersquatters.  It is being
successfully misused as a cheap alternative to acquire domain names held by
small and medium businesses.

Because the NAF decided to accredit Mr. Nelson Diaz, the owner of
vanity.com was
ordered to transfer its rights to the 17-year old domain despite holding a
valid trademark on the term 'vanity.com' and operating a website at that
address, and despite a strong defense by our own Mr. Rodenbaugh.

http://www.thedomains.com/2012/06/20/vanity-com-lost-in-a-udrp-despite-pending-federal-court-case-asking-1m-for-a-domain-is-bad-faith/

Because the NAF decided to accredit Mr. Daniel Banks, the Korean dentist
who owned opendental.com lost his domain to a company that wasn't even in
existence at the time he registered the domain:

http://domainnamewire.com/2009/08/10/open-season-on-opendental-com/

Because WIPO chose to accredit Mr. John Swinson, DKB Data Services lost the
rights to its inactive domain dkb.com

http://domainnamewire.com/2009/10/08/arbitrator-hands-dkb-com-to-deutsche-kreditbank/

Many members of this group own domains that would be subject to transfer
using the same reasoning found in these decisions.

ICANN is overseeing a fundamentally flawed UDRP system that encourages
forum shopping and that does not standardize procedures among UDR
providers.  Lack of standardization would be a serious problem on its own,
but it is compounded by forum shopping that leads to a pro-Complainant
bias.

If we had any confidence that ICANN staff would act on our recommendation
to develop standards for UDRP administration, then I would be more likely
to vote for version #2.

In the absence of those standards being developed, our "qualified
endorsement" becomes an "unqualified endorsement".

Because ICANN has shown no inclination to develop standards for UDRP
administration, I believe it is premature to accredit any new UDRP
providers.

I vote for version #1.

Sincerely,

Nat Cohen
Riptide LLC


On Fri, Apr 5, 2013 at 11:30 AM, Andy Abrams <abrams@xxxxxxxxxx> wrote:

> Thanks to all for their work on this issue.  We support Version 2.
>
> Best,
>
> Andy
>
>
> On Thu, Apr 4, 2013 at 4:51 PM, Steve DelBianco 
> <sdelbianco@xxxxxxxxxxxxx>wrote:
>
>>   Two updates to the review/vote I circulated on 2-April (below):
>>
>>  1. Benedetta sent minutes & transcript of 28-March call among BC
>> members and representatives of ACDR 
>> (link<http://forum.icann.org/lists/bc-gnso/msg03236.html>
>> )
>>
>>  2. ACDR later circulated written answers to several of the questions
>> discussed on the call 
>> (link<http://forum.icann.org/lists/bc-gnso/msg03237.html>
>> )
>>
>>  Remember: Please review and reply with your vote before 12-April.
>>
>>  --Steve
>>
>>
>>   From: Steve DelBianco <sdelbianco@xxxxxxxxxxxxx>
>> Date: Tuesday, April 2, 2013 12:03 AM
>> To: 'bc - GNSO list' <bc-gnso@xxxxxxxxx>
>> Subject: [bc-gnso] FOR REVIEW AND VOTE: Alternative positions for ACDR
>> proposal as UDRP Provider
>>
>>    ICANN has called for comments regarding ACDR's proposal to serve as a
>> UDRP provider 
>> (link<http://www.icann.org/en/news/public-comment/acdr-proposal-01mar13-en.htm>).
>>  The comment period ends 13-Apr.  (UDRP is the Uniform Domain Name
>> Dispute Resolution Policy)
>>
>>
>>   Note: ACDR is the Arab Center for Domain Name Dispute Resolution, and
>> is affiliated with BC Member Talal Abu-Ghazaleh. ****
>>
>>  ****
>>
>> Phil Corwin and Nat Cohen volunteered as rapporteurs for these comments.
>>  We circulated Phil's initial draft on 20-Mar.  The BC held a conference
>> call on 28-March with ACDR representatives to discuss the first draft 
>> (transcript
>> available on request).
>>
>>     As a result of that discussion, the BC is now considering two
>> alternative positions:
>>
>>  Version 1:  The existing BC position, with no comment on the merits of
>> ACDR's proposal.  This would maintain the present BC position that no new
>> providers should be approved until ICANN has standards for UDRP
>> administration.
>>
>>  Version 2: Amend the present BC position and give "Qualified
>> Endorsement" to ACDR's proposal.
>>
>> This alternative repeats the BC's prior rationale for ICANN to develop
>> standards for UDRP administration.  It then modifies the prior position
>> to acknowledge that ICANN may approve ACDR's proposal since they have
>> acknowledged process concerns, answered questions, and agreed to adopt any
>> standards ICANN develops.  The endorsement is "qualified" in that the BC
>> requests ICANN to develop standards for UDRP administration, and suggests a
>> staff-driven process with community input.
>>
>>
>>  Voting:
>>
>>  BC members should vote for either Version 1 or Version 2.
>>
>>  To vote, please reply to this email indicating your support for Version
>> 1 or Version 2.
>>
>>  Voting will close on 12-April so that we can submit the comment on
>> 13-April.
>>
>>  Per our charter, a simple majority prevails and the required quorum is
>> 50 percent of paid BC members.
>>
>>  As always, members can REPLY ALL at any time to share their views on
>> this issue.
>>
>>  Steve DelBianco
>>       Vice chair for policy coordination
>>
>
>
>
> --
> Andy Abrams | Trademark Counsel
> *Google* | 1600 Amphitheatre Parkway, Mountain View, CA 94043
> (650) 669-8752 <https://www.google.com/voice#phones>
>