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

["Dorrain, Kristine" <kdorrain@xxxxxxxxxxxx>]

Marika and all:

I haven't read all the responses yet, I just wanted to clarify that the NAF 
practice is to allow the parties to settle, and the domain name to transfer, 
then, if they don't notify us otherwise, we dismiss the case.  This provides a 
protection mechanism.  The case is still active and pending so that if 
negotiations sour, either party can "un-suspend" the proceedings and carry on.  
Not allowing the transfer until after the case is dismissed will remove this 
protection.  In the case of the big registrars that handle this process well, 
the registrar takes responsibility to move the name itself, as I understand it. 
 This means the respondent can't "cheat" can and transfer the name away.  The 
domain name never actually gets "unlocked" per the UDRP-definition in the 
process.  I'm not saying that is the only way it can happen, just that these 
two things (the way the suspensions are currently handled by the providers and 
the way the bigger registrars handle the settlements) seem to provide the 
greatest level of security for the parties.

Kristine


From: owner-gnso-lockpdp-wg@xxxxxxxxx [mailto:owner-gnso-lockpdp-wg@xxxxxxxxx] 
On Behalf Of Marika Konings
Sent: Sunday, June 16, 2013 6:36 AM
To: Gnso-lockpdp-wg@xxxxxxxxx
Subject: [gnso-lockpdp-wg] For your review and feedback - options to address 
settlement

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.