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

[Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>]

Right, that is my reading as well.

From a registrars perspective, this process can however be improved by 
requiring the parties to provide their statements regarding the 
settlement to the provider instead of to the registrar and the provider 
then instructing the registrar to take a certain action with regard to 
the settlement terms. the registrar would then confirm the completion of 
the action to the provider who would then dismiss the case or resume it, 
whatever the case may be.
The net effect would be that the registrar is no longer required to form 
an opinion regarding the settlement agreement and instead be relegated 
to its technical function of implementing the result of the UDRP (which 
should be its only role in the UDRP anyway).
Best,

Volker

> Kristine, Marika, All,
>
> Just to indicate that the practice at WIPO is comparable -- the 
> process of giving effect to any settlement (including transfer, if 
> that is indeed what the parties would agree) would typically 
> occur/before/ the UDRP case would be formally dismissed.   Assuming 
> that the UDRP proceedings would have been suspended at party request 
> for a period for purposes of possible settlement (which is what 
> usually happens), and for whatever reason settlement proves not to be 
> possible, the UDRP proceedings may then be recommenced at request of 
> either party.
> However any settlement involving agreed transfer would be practically 
> implemented between the parties and registrar, we generally advise the 
> registrar to only "unlock" the disputed domain name for the purpose of 
> giving effect to any such settlement agreement between the parties 
> (and not e.g. for the purpose of transferring to any third-party not 
> covered by the relevant party agreement).
> David
>
> *From:*owner-gnso-lockpdp-wg@xxxxxxxxx 
> [mailto:owner-gnso-lockpdp-wg@xxxxxxxxx] *On Behalf Of *Dorrain, Kristine
> *Sent:* lundi 17 juin 2013 16:27
> *To:* 'Marika Konings'; Gnso-lockpdp-wg@xxxxxxxxx
> *Subject:* [gnso-lockpdp-wg] RE: For your review and feedback - 
> options to address settlement
> 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> 
> [mailto:owner-gnso-lockpdp-wg@xxxxxxxxx] 
> <mailto:[mailto:owner-gnso-lockpdp-wg@xxxxxxxxx]> *On Behalf Of 
> *Marika Konings
> *Sent:* Sunday, June 16, 2013 6:36 AM
> *To:* Gnso-lockpdp-wg@xxxxxxxxx <mailto: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./
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Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.

Mit freundlichen Grüßen,

Volker A. Greimann
- Rechtsabteilung -

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