RE: [gnso-irtp-b-jun09] Recommended Modifications to the Latest ERTP Recommendation

["Michael Collins" <mc@xxxxxxxxxxxxxxxxx>]

All:

 

I understand the reluctance to deal with a dispute over rights to a domain 
name. However, isn’t this exactly what we are doing with ETRP? We are changing 
the “ownership” from a registrant at the gaining registrar to a different 
registrant at PTRa. How many times do you think an ETRP will be filed when the 
registrant at both registrars is the same?

 

UDRP is only available for registrants that have an appropriate trademark or 
service mark. It will not benefit many victims ETRP abuse. Courts are not an 
easy solution for a domain name dispute caused by ETRP abuse, especially if the 
opposing registrar and registrant are in a “difficult” country.

 

The TDRP includes text that makes it seem that it is designed to consider 
inter-registrar transfers that occur concurrently with a change of registrant. 

“3.1.4(i) d. Copy of a bilateral agreement, final determination of a dispute 
resolution body or court order in cases when the Registrant of Record is being 
changed simultaneously with a Registrar Transfer”

 

The ETRP dispute provisions in its current form, requiring PTRa to decide any 
dispute between it and the gaining registrar are not very helpful. If we do not 
want to develop a meaningful dispute mechanism, we should just remove it all 
(section 5). If we decide to delete it all, we should recommend the GNSO 
consider changes to TDRP to accommodate disputes caused by ETRP.

 

Best regards,

Michael Collins

 

 

From: Steele, Barbara [mailto:BSteele@xxxxxxxxxxxx] 
Sent: Friday, May 21, 2010 4:51 PM
To: James M. Bladel; Mike O'Connor
Cc: IRTP B Mailing List; Michael Collins
Subject: RE: [gnso-irtp-b-jun09] Recommended Modifications to the Latest ERTP 
Recommendation

 

James et al,

I like the analogy of removing a racket being the only way to stop the ping 
pong effect that will certainly develop with the ERTP Dispute.  I agree that we 
should forego the ERTP Dispute option.  I, too, recognize that this approach 
may raise criticism as being too one sided but at the heart of the issue is a 
dispute over rights to a domain name.  The IRTP and associated TDRP were not 
developed to address this issue.  Just as the policy name suggests, it is the 
Inter Registrar Transfer Policy.  I agree with James that disputes over the 
registration rights to a domain name should continue to be addressed by the 
UDRP and/or the courts.  

Barbara Steele

Compliance Officer / Director of Policy

Naming Services

 

-----Original Message-----
From: James M. Bladel [mailto:jbladel@xxxxxxxxxxx]
Sent: Friday, May 21, 2010 2:49 PM
To: Mike O'Connor
Cc: Steele, Barbara; 'IRTP B Mailing List'; Michael Collins
Subject: RE: [gnso-irtp-b-jun09] Recommended Modifications to the Latest ERTP 
Recommendation

Team:

 

I've been reluctant to comment on some of the ETRP changes thus far, due

to my desire to get more feedback via Public Comment.  But I do have

concerns about the direction we're headed with this proposal, and I

think it would be prudent for us to be thinking of a fall-back position,

in the event that we receive significant push-back from the community.

In short, I think we should consider going forward with an alternate

version that doesn't include a means to dispute the ETRP.  I say this

with full acknowledgment to the problems that Michael, Kevin, Barbara

and others have identified, and the efforts of the Working Group to

address them.  But the "ETRP Dispute" contains some fundamental flaws

that could derail our entire proposal.

Essentially, the ETRP Dispute broadens the proposed policy from its

narrow goal of reversing transfers, and puts Registries and Registrars

in the position of adjudicating ownership / control issues.  In my

opinion, this is an issue that cannot be resolved by ICANN policy, nor

should it.  Genuine disputes must be resolved by outside arbitration

(e.g. UDRP) or an appropriate court.  It may seem unbalanced, but in

order to prevent a ping-pong situation from developing, someone has to

give up their racket. 

Throughout this process, we've worked hard to build support amongst

those stakeholders who are most likely to oppose ETRP in any form.  But

I'm afraid that some of these changes will erode that support and the

momentum that we've created on this issue. So, I think a fall-back

version that doesn't include the ETRP Dispute section would be a good

contingency plan.

 

Thanks--

 

J.





-------- Original Message --------

Subject: Re: [gnso-irtp-b-jun09] Recommended Modifications to the

Latest ERTP Recommendation

From: "Mike O'Connor" <mike@xxxxxxxxxx>

Date: Fri, May 21, 2010 10:20 am

To: Michael Collins <mc@xxxxxxxxxxxxxxxxx>

Cc: "'Steele, Barbara'" <BSteele@xxxxxxxxxxxx>, "'IRTP B Mailing

List'" <Gnso-irtp-b-jun09@xxxxxxxxx>

Michael and Barbara,

many thanks to both of you for this discussion -- i'm comfortable with

where the two are you are headed, so you've got my vote to go ahead and

drive this last round of changes in Michael.

 

mikey

 

On May 19, 2010, at 4:19 PM, Michael Collins wrote:

Hi Barbara and all,

 

Thank you for your work on this. It is good to remove erroneous

assumptions about TDRP from ETRP. I am disappointed that the TDRP cannot

be used to resolve a potential dispute between registrars and their

customers that results in an ETRP. I am not sure that it is within our

mandate to suggest any changes to TDRP, though it does not seem to work

well in practice according to some members of our group.

 

It was my desire for the domain to stay in the control of PTRa during a

dispute. However, if we are going to accept that a claim of hijacking

(ETRP) is cause to reverse a transfer, we should accept that a claim

that an ETRP was filed in error (Disputed ETRP) as cause to restore a

transfer, not just when PTRa agrees. PTRa should not be put in the place

of deciding a dispute between PTRa and the gaining Registrar. Both

claims (ETRP and Disputed ETRP) must present the same level of

explanation, identification and indemnification and lacking any dispute

resolution mechanism should be treated with equal actions.

 

It is my opinion that most hijackers will not want to reveal their

identity and indemnify their registrar, so most ETRPs caused by

hijacking will not result in a Disputed ETRP. PTRa could still file a

TDRP to resolve an ITRP dispute, but it would not get to decide the

dispute in a TDRP.

 

Would the group like to discuss this before I attempt to edit the

document to make these changes?

 

Best regards,

Michael Collins

 

 

From: owner-gnso-irtp-b-jun09@xxxxxxxxx

[mailto:owner-gnso-irtp-b-jun09@xxxxxxxxx] On Behalf Of Steele, Barbara

Sent: Wednesday, May 19, 2010 2:47 PM

To: IRTP B Mailing List

Subject: [gnso-irtp-b-jun09] Recommended Modifications to the Latest

ERTP Recommendation

 

 

All,

I have incorporated my recommended modifications into the latest version

of the document.  Because this proposed policy is intended to augment

existing policies, I have deleted the language relating to option to

dispute a disputed ERTPusing the TDRP.  Also, the registries will not

want to be in the middle of the communications that ensue between the

PTRa and the new Registrar should the new Registrar elect to dispute the

ERTP.  The registries would add little to no value in that activity.  To

the extent that the PTRa, upon receipt of a Disputed ERTP case from the

new Registrar, agrees that the domain name should not have been

transferred via the ETRP, then they would forward the Disputed TDRP to

the appropriate Registry Operator and the Registry Operator would

restore the domain name to the new Registrar within 5 days (I changed

this from 30 days as the IRTP calls for the following in Part A, Section

6:

“The Registry Operator must undo the transfer within five (5) calendar

days of receipt of the notice except in the case of a Registry dispute

decision, in which case the Registry Operator must undo the transfer

within fourteen calendar days unless a court action is filed. The notice

required shall be one of the following:

i. Agreement of the Registrar of Record and the Gaining Registrar sent

by email, letter or fax that the transfer was made by mistake or was

otherwise not in accordance with the procedures set forth in this

policy;

ii. The final determination of a dispute resolution body having

jurisdiction over the transfer; or

iii. Order of a court having jurisdiction over the transfer.”

Please let me know if any of my recommended edits do not make sense. 

Many thanks.

<<...>>

Barbara Steele

Compliance Officer / Director of Policy

VerSign, Inc.





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