RE: [gnso-igo-ingo] Exception Procedure

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Please see my personal responses below, noting that David and I are working 
within the RySG to get clear direction from our SG on these issues but won't 
have that for a week or two at the soonest.

Chuck

From: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On 
Behalf Of Robin Gross
Sent: Tuesday, March 19, 2013 9:43 PM
To: gnso-igo-ingo@xxxxxxxxx
Subject: Re: [gnso-igo-ingo] Exception Procedure

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.

[Gomes, Chuck] I generally agree with this principle but I would qualify it in 
this way: In the case of reserved names or any special category of protected 
names that might be approved, I think that there should be an exception 
procedure to allow for registrations by entities that also have rights to the 
names; in those cases, there would need to be a way for the entities to 
demonstrate their rights. Historically we have an example of this in the case 
of ISO 3166 2-character country codes at the second level for gTLDs: such names 
are not allowed without the permission of the applicable country. An example of 
this in our current discussions is the name Olympic: if some sort of 
protections are approved for the name Olympic, then it seems reasonable to 
allow Olympic to be registered at the second-level if an organization can 
demonstrate that it has rights to that name and will commit to use it in a way 
that does not create user confusion with the IOC.

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.

[Gomes, Chuck] Whether or not the need for special privileges has been shown or 
not is a subjective decision.  As everyone knows, I think we need to avoid 
subjectivity as much as possible.  If we go down the path of requiring 
organizations to prove their case for protections, we will end up with some of 
us thinking they made a strong enough case and others disagreeing, and we will 
have spent a lot time to end up back where we started.  In general I do not 
think that registrants should have to show they have rights before registering 
a name. But in some cases where there are reserved names or other sorts of 
protected names, if there is not a very clear basis for protection (e.g., it is 
clearly illegal), then I think it makes sense to have an exception procedure in 
which the registrant should have the burden of showing their entitlement to the 
name.


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.

[Gomes, Chuck] I disagree.  I think the process David describes below has a lot 
of good elements.  I would tweak it some to make it a little more objective and 
implementable but I will talk about that elsewhere.

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<mailto: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
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robin@xxxxxxxxxxxxx<mailto:robin@xxxxxxxxxxxxx>