[gnso-lockpdp-wg] Fw: ICANN GNSO Lock WG - Suspension Practice
Dear All, Please see below WIPO comments re suspension practice being here forwarded to the list. Best, David From: Gray, Ty Sent: Thursday, March 07, 2013 09:00 AM To: Roache-Turner, David Cc: Teng, Joanne Subject: ICANN GNSO Lock WG - Suspension Practice Dear All, We have reviewed the proposal from Matt and note the benefits to the parties and concerned registrar which could flow from a clarification of the existing suspension and settlement practice vis a vis the lock of a domain name in a recommendation from this Working Group. At WIPO we have historically seen approximately 20 to 25% of all UDRP cases since the year 2000 terminate following a suspension for settlement, and as such it would undoubtedly be advantageous to parties and registrars unfamiliar with the process to establish best practices or guidelines to clarify the unlocking procedure and develop party expectations for such process. At WIPO, a suspension is typically requested by the complainant or the parties jointly, indicating that the parties request a determinate period of time to engage in settlement negotiations. Following the receipt of such request, the Center as Provider would inform the parties and the concerned registrar as to the suspension period of the proceeding. During the suspension, the disputed domain name may be unlocked, provided it is to enable the implementation of a settlement agreement between the parties to transfer the domain name from the respondent to the complainant, only. The Policy does not make any provision for the Center, as neutral Provider, to participate directly in settlement negotiations, and in any event the Center is not in a position to implement any agreement to transfer or cancel a domain name. After suspending the proceedings, the Center would typically either receive a confirmation from the complainant or parties that the domain name was transferred to the complainant (or cancelled) and that the proceedings may be withdrawn or terminated, or we would receive a request to reinstitute the proceedings. We do not see any problem per se in confirming to the registrar the receipt of a communication or document from the complainant and the respondent/registrant (noting that such would preferably be associated with the registrant’s details in the WhoIs or confirmed to us from the registrar) evidencing an agreement to transfer the disputed domain name to the complainant or cancelling the domain name, and on that basis noting that the registrar may unlock the domain name in order for this element of the settlement agreement to be implemented. However, our role as Provider (whose function is limited to administering the proceeding under the UDRP) would not provide us with the power to order the registrar to transfer or cancel the disputed domain name (a power which has been reserved to the duly appointed Administrative Panel in its Decision upon consideration of the substantive elements of a case and any relevant issues of law). As this is a well-established practice, we feel that it would be most advantageous to capture as a best practice or guideline the process which is working in nearly all cases (indeed, we note that almost all questions we do receive concerning suspension and settlement involve an understanding of the process itself, which may be addressed by such recommendation from the Working Group). We would not oppose a recommendation which would include an optional, supplemental Provider confirmation of receipt of settlement communications from the parties if a registrar would find this helpful, but we feel such recommendation should preserve as a requirement the process which is commonly utilized in practice. Sincerely, Ty Gray, with regards from David Roache-Turner WIPO Arbitration and Mediation Center World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. If you have received this e-mail by mistake, please immediately notify the sender and delete this e-mail and all its attachments. Please ensure all e-mail attachments are scanned for viruses prior to opening or using.