Re: [gnso-lockpdp-wg] RE: For your review and feedback - options to address settlement
+1 to Volker ------------------------ Mr. Michele Neylon Blacknight http://Blacknight.tel Via iPhone so excuse typos and brevity On 17 Jun 2013, at 11:23, "Volker Greimann" <vgreimann@xxxxxxxxxxxxxxx<mailto:vgreimann@xxxxxxxxxxxxxxx>> wrote: 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> [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<mailto: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. 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. -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. 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