Re: [gnso-lockpdp-wg] For your review and feedback - options to address settlement

["Michele Neylon :: Blacknight" <michele@xxxxxxxxxxxxxx>]

Luc et al

Removing my chair hat .. 

I fully support Luc's views on this.

We are a small registrar.

We do not have a team of lawyers, nor are we involved in many UDRPs. I'm sure 
there are quite a few other registrars in a similar position.

With that in mind we need simple, clear instructions on what we need to do. 
Call it simplistic, but the UDRP provider appears to be the only entity who can 
provide these instructions with respect to settlements etc., and I think Luc's 
suggested process below makes a lot of sense.

As a registrar the stakes are very high. If we do not enact the UDRP decision / 
settlement etc., correctly we risk losing our accreditation with ICANN.

Regards

Michele

On 17 Jun 2013, at 03:54, Luc SEUFER <lseufer@xxxxxxxxxxx>
 wrote:

> 
> Hi All,
> 
> Sorry for not being able to join last week.
> 
> I am one of those few (in the working group but majority I am sure in the 
> registrar community) strong supporter of Option A.
> As far as I know, option B is how a settlement during UDRP proceedings is 
> currently operated by most of the providers, so it would be solely a vetting 
> of current practices which in my opinion are full of grey areas. As evidenced 
> by Marika’s to the point description, registrars are currently asked to:
> 
> unlock for the sole purpose of (whatever the settlement is),
> As the registrars on this working group have been explaining since its start 
> there are no uniform lock measures and those have several layers. Solely 
> asking registrars to unlock the domain name for a purpose that is not yet 
> agreed upon by the parties is just too vague. Furthermore, some in this group 
> were apparently dead-scared of the cyberflight risk at the beginning of the 
> process, but this broad unlock instruction  would bring back the same risk 
> level.
> 
> Solely asking registrars to unlock is not precise enough, the purpose needs 
> to be expressly stated i.e. change the owner details to XXXX, initiate a 
> deletion procedure at the registry’s level... At the end of the day 
> registrars are mere technical intermediaries and not law firms able to 
> understand settlement agreements and to take all necessary measures to ensure 
> their timely execution.
> 
> From what I understand, UDRP providers seem to fathom option A as an added 
> layer liability for them, which it is not if this process is clearly defined. 
> I trust they are ways to do so.
> 
> For example, we could imagine that a simple standardised form be used by UDRP 
> providers. Such form which would be executed by both parties (or their 
> representatives) would state that the parties have settled and request that 
> the domain name(s) subject to the proceedings remain with the respondent, be 
> transferred to the complainant (details of the latter for each contact set 
> would have to be specified) or be deleted.
> 
> UDRP providers would then only operate the so-called administrative review of 
> the form and if such review is conclusive would instruct the registrar of the 
> action to take.
> 
> By doing so we would leave all the issues attached to a settlement in the 
> hand of the applicable parties and not grant new powers and responsibilities 
> to UDRP providers, or ask of registrars to try and decipher settlements 
> between while having their ICANN accreditation at stake in case of a 
> misinterpretation of said settlement.
> 
> Let me have your thoughts,
> 
> Luc
> 
> 
> On Jun 16, 2013, at 1:35 PM, Marika Konings 
> <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>> wrote:
> 
> Dear All,
> 
> As discussed during our last meeting, please find below the two options in 
> relation to settlement under consideration, as well as some of the notes 
> reflecting our discussion. Although option A received the most support in 
> response to the survey, following further discussion during the meeting, it 
> seems that there are some strong views in support of option B, while the 
> support for option A is perceived to be weaker. As a result, those on the 
> call appear to be leaning towards favouring option B (as modified below) for 
> inclusion in the Final Report. If there is disagreement with this approach, 
> you are encouraged to share your views with the mailing list ahead of the 
> next meeting.
> 
> Note, in reviewing preliminary recommendation #10, which is linked to this 
> issue, it looks like we may need to update the language to reflect that a 
> transfer can only be carried out once the UDRP has been dismissed, so 
> replacing 'the registrar must remove any lock preventing a transfer or 
> cancellation within 2 Business days of confirmation of the settlement by both 
> Parties' with 'the registrar must remove any lock preventing a transfer or 
> cancellation within 2 Business days of confirmation of the settlement by both 
> Parties and confirmation of the dismissal by the UDRP Provider (noting that 
> such confirmation of automatic dismissal may be included in the original 
> order issued by the Provider informing the Registrar of the suspension). If 
> my assumption is incorrect or you have other suggestions on how to address 
> this issue, please feel free to share your comments / suggestions with the 
> mailing list.
> 
> With best regards,
> 
> Marika
> 
> Settlement – Options under consideration
> Option A: (1) parties ask for suspension, (2) parties settle, (3) parties 
> inform provider, (4) provider issues order to registrar to change the holder 
> details or delete the domain name, (5) that change or deletion happens, (6) 
> complainant confirms change or deletion is complete, and (7) provider 
> dismisses the case.
> Note – UDRP Providers noted that no transfer is allowed until the case is 
> dismissed which, should this option be supported, would mean that step 7 may 
> need to be added to step 4.
> Option B (as updated during the last meeting) – (1) parties ask for 
> suspension (suspension request includes automatic dismissal when the 
> suspension period is up), (2) provider issues order allowing registrar to 
> unlock for the sole purpose of (whatever the settlement is), (3) parties 
> settle), (4) parties request the registrar to implement the settlement 
> agreement - in case of a settlement in favor of the complainant, by moving 
> the domain name to the control of the complainant where it shall remain 
> locked pending the receipt of a dismissal from the provider when the domain 
> name will be unlocked, and (4) provider dismisses case automatically with no 
> further action needed (if settlement discussions break down, either party can 
> request that the case be reinstated before automatic dismissal).
> Issues discussed during the last meeting:
> 
> ·       Registrar does not have relationship with Complainant, but has 
> received a copy of the complaint that contains the relevant information
> 
> ·       UDRP Provider does not have relationship with Respondent, but 
> information should have been verified by the registrar
> 
> ·       If UDRP Provider is responsible for ‘confirming’ settlement, 
> registrars need to be aware that this will not absolve them from any 
> responsibility under the UDRP
> 
> ·       Transfer is not allowed until UDRP case is dismissed
> 
> ·       Settlement can also include agreement that domain name registration 
> stays with respondent (i.e. does not always involve a transfer)
> 
> ·       Provider is administrative body, does not have legal authority to 
> ‘order’ transfer
> 
> ·       If option A would become the new process (part of UDRP rules or in 
> the form of an advisory), wouldn’t it become enforceable on registrars (via 
> ICANN Compliance)?
> 
> Note, this recommendation is linked to Preliminary Recommendation #10: In the 
> case of suspension of a proceeding (when the parties have agreed to a 
> settlement), the UDRP Provider informs the Registrar of the Suspension, 
> including the expected duration of the suspension. Should both parties come 
> to a settlement, which would involve a transfer, cancellation or agreement 
> that the registration will remain with the Respondent, the registrar must 
> remove any lock preventing a transfer or cancellation within 2 Business days 
> of confirmation of the settlement by both Parties.
> 
> 
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Mr Michele Neylon
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