Re: [gnso-igo-ingo] Exception Procedure

[Thomas Rickert <rickert@xxxxxxxxxxx>]

Hi Robin, Mason, all,
thanks for your messages.

A quick response to two points you made:

- Robin said: The need for special privileges has not been shown by most of 
those seeking it here.  

The issue is that those seeking protections have either declared that they do 
not see the need to provide further information or deem the information they 
have provided sufficient.
On the other hand, those asking for more information have not specified what 
exactly they would like to see to satisfy their concerns. 
In order to help overcome this difficulty, ICANN staff has analyzed existing 
domain registrations. Yet, this was not deemed sufficient to resolve the issue.

As chair, I have stated (and am more than happy to repeat this here) that I do 
not see any possibility to move on (rather than moving in circles) in a 
constructive manner unless we can specify what information exactly is needed by 
those that only seem to be able to consider protections if they get more facts. 
We can then ask the organizations seeking protections whether they are willing 
to respond to such request. 

In the absence of that, I see no alternative than to live with the current 
situation. That means (and I have also made that clear multiple times) that 
there is the risk that parts of the community will say no to protections merely 
because they do not have enough facts on the need for protection / the 
existence of harm available.

- Both of you voiced concerns that legitimate third parties should go through 
an exemption process as described.

I have not heard any objections before in the group against the need for an 
exemption process since there do not seem to be absolute legal protections for 
the organizations seeking protections for their names and acronyms. Hence, 
there must be a process for ensuring that legitimate use can happen.

Reading your responses, I am not quite sure with respect to the consequences. 

Are you saying that you do not see the need for an exemption process because 
you would under no circumstances agree to protections that would include an 
exemption mechanism? In other words: An exemption mechanism would by definition 
lead to registration requests being given special treatment. My impression is 
that you are against any procedures that would give domain registration 
requests special treatment. If that were true, you would per se be against any 
proactive protection mechanisms. 

But, if you are just unhappy with the way the exemption process David proposed 
in his e-mail is designed, please let us know what changes would need to be 
made to respond to your concerns. 

Can you please clarify?

Again, we are now at a point of our discussions where I need to get feedback 
what needs to be done to address concerns. 

Any member (and I am not addressing you, Robin and Mason, in particular) that 
is not happy with the proposals you find in the latest versions of the 
documents that are on the table should say what we need to do to respond to 
concerns that should be specified. 

Lacking such information we cannot create a package that finds everyone's 
approval. As I said, we need to bring this to a close. I will further refine 
the documents based on the group's input and then it is up to everyone to say 
yes or no. 

Thanks,
Thomas



Am 20.03.2013 um 07:30 schrieb 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
>> 
>> 
>> 
>