Re: [gnso-igo-ingo] Exception Procedure

[Mason Cole <mcole@xxxxxxxxxx>]

I would say the RrSG mostly agrees with Robin here.  

From an operational perspective it will be difficult for registrars to somehow 
explain to a registrant with a legitimate interest in a name why it's denied, 
and why the registrant would be obligated to overcome to an unknown arbiter the 
presumption that another party's interest in the SLD should prevail.  It's a 
burden registrants are not accustomed to, would increase costs and create 
customer confusion.  This isn't to be dismissed.  Making assumptions about how 
easy it is to put various and arbitrary parameters on how to register a domain 
name is not a slam-dunk and unfortunately has delayed or prevented various 
desired outcomes after facts become clear.

At the policy level, the DNS has historically defaulted to open speech and 
usage by legitimate registrants that intend lawful use of a term, with remedies 
or protections available to those whose legal rights supersede in defined 
cases.  Right now, we lack definition of concrete, recognizable and practical 
exceptions for the organizations under discussion.  Be clear it's not a case of 
not being sympathetic to the situation faced by IGOs and INGOs -- just that the 
whatever solution is arrived at is practical and implementable without 
overreaching.  It doesn't seem we're there yet.

And Robin is further right -- if this WG is going to arrive at something that 
can be agreed to, it must be reasonable in scale and simple to implement in the 
face of multiple priorities by operators.  I would hate to see efforts arrive 
at nothing because the menu was too broad to be actually doable.

Mason



On Mar 19, 2013, at 6:43 PM, Robin Gross wrote:

> I still maintain my objection to any provisions that won't register a domain 
> unless a registrant can show it has a right to the name.
> 
> The need for special privileges has not been shown by most of those seeking 
> it here.  It is not fair to shift the burden over to everyone else to have to 
> show they are entitled to register a domain because one of these groups wants 
> it.  
> 
> I don't think there can be consensus on the creation of any privileges even 
> remotely close to what is outlined below.  Continued work in this direction 
> is wasted effort.  Those who want privileges should focus on what they can 
> realistically expect to receive consensus on.
> 
> Thanks,
> Robin
> 
> 
> On Mar 19, 2013, at 3:18 PM, David Heasley wrote:
> 
>> Thomas and All,
>>  
>> Here, as requested, is a more detailed outline of the exception procedure to 
>> follow when an applicant claims a legitimate interest in using a protected 
>> name.
>>  
>>  
>> Goal: Where an applicant claims a legitimate interest in a second-level 
>> domain name that is a protected name, our goal is to provide a procedure for 
>> determining whether the application should proceed to registration.
>>  
>>             General Principles: The procedure must:
>>  
>>             · Provide immediate notification to the applicant and the 
>> protected organization when an application is refused registration because a 
>> name is protected.
>>  
>>             · Provide a channel of communication between the applicant and 
>> the protected organization; 
>>  
>>             · Provide an impartial, expeditious, and inexpensive process for 
>> determining if the applicant has a legitimate interest such that its 
>> application should proceed to registration; 
>>  
>>             · Use existing dispute resolution procedures wherever possible.
>>  
>>  
>> Outline of Procedure:
>>  
>>  1.  Notification of Conditional Refusal Based on Protected Name.  The 
>> applicant and protected organization will receive immediate electronic 
>> notification if an applied-for second level domain is conditionally refused 
>> registration because of a Protected Name in the Clearinghouse.
>>  
>> 2.  Declaration of Legitimate Use.
>>  
>>     2.1  Each protected organization must record and maintain accurate 
>> contact information with the Clearinghouse designating a recipient and 
>> address to be notified electronically. 
>>  
>>     2.2  Within ten (10) days of receiving a conditional refusal, an 
>> applicant may file a declaration with the Registry. The declaration must 
>> identify the applicant accurately, provide accurate contact information, and 
>> state that the applicant has a good faith, legitimate interest in using the 
>> domain name that does not violate any treaties, national laws or other legal 
>> entitlement of the protected organization. A standard form will be provided. 
>> The protected organization will receive a copy of the declaration 
>> electronically at its given address when the declaration is filed with the 
>> Registry.
>>  
>>     2.3  If, within ten (10) days after receipt of the above declaration, 
>> the protected organization does not file an objection with the Registry, the 
>> subject application will proceed to registration. 
>>  
>>    2.4. If, within ten (10) days after receipt of the above declaration, the 
>> protected organization files an objection with the Registry, the conditional 
>> refusal will be reviewed by an independent Examiner. 
>>  
>> 3. Examination.   
>>  
>>     The examination procedure (which is under consideration and will be 
>> discussed before this section is filled in) must comply with the principles 
>> above. It must:
>>  
>>         3.1 Be impartial;
>>  
>>         3.2 Give both parties the opportunity to be heard;
>>  
>>         3.3 Be expeditious; and
>>  
>>         3.4 Use existing procedures whenever possible.  
>>  
>>  
>>  
>> Jim, Kiran, and I look forward to discussing this with the Group.
>>  
>>  
>> David K. Heasley
>> Silverberg, Goldman & Bikoff, LLP
>> 1101 30th Street, N.W.
>> Suite 120
>> Washington, D.C. 20007
>> Tel. 202.944.2339
>> Fax  202.944.3306
>> dheasley@xxxxxxxxx
>>  
>> 
>>  
> 
> 
> 
> 
> IP JUSTICE
> Robin Gross, Executive Director
> 1192 Haight Street, San Francisco, CA  94117  USA
> p: +1-415-553-6261    f: +1-415-462-6451
> w: http://www.ipjustice.org     e: robin@xxxxxxxxxxxxx
> 
> 
>