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

["Mike O'Connor" <mike@xxxxxxxxxx>]

ah.  Michael beat me to it.

i share his view -- a process like this, without a mechanism to prevent abuse 
by the losing registrant, makes me extremely uncomfortable.

mikey


On May 21, 2010, at 5:25 PM, Michael Collins wrote:

> 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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> 
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