RE: [gnso-sti] URS Strawman Proposal 111109.xls

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

I understand Wendy's concern and share it to some point, but would not go as 
far as "any evidence" can defeat a complaint.  That could consist of the 
registrant's bare declaration that, for example, 'yahoo' is a South American 
bird and he intended to build a site dedicated to said bird.  He ought to have 
to prove a dictionary definition and some objective plans towards building that 
site (i.e. a business plan, mock website, something...).  So I think the 'clear 
and convincing' evidence standard remains appropriate for the URS cases, to 
allow some discretion for the Examiner to ignore unsupported 'evidentiary' 
assertions.

Mike Rodenbaugh
RODENBAUGH LAW
548 Market Street
San Francisco, CA  94104
(415) 738-8087
http://rodenbaugh.com 

-----Original Message-----
From: owner-gnso-sti@xxxxxxxxx [mailto:owner-gnso-sti@xxxxxxxxx] On Behalf Of 
Wendy Seltzer
Sent: Tuesday, November 17, 2009 6:52 AM
To: Kurt Pritz
Cc: Jonathon Nevett; GNSO STI
Subject: Re: [gnso-sti] URS Strawman Proposal 111109.xls


Thanks Kurt,

One quick response:

> No genuine issue of material fact -- similar to Rule 56 of U.S. Fed. Rule of 
> Civil Procedure.
> Staff comment: this is workable, we think the clear and convincing standard 
> is better. The strawman burden seems equivalent to the summary judgment 
> burden – which can be defeated by essentially any evidence, where the clear 
> and convincing burden, while high, enables some balancing on the part of the 
> panelist.

I think a high burden and clear standard, leaving the examiners little
discretion, are critical to keeping a rapid and inexpensive URS fair.
Hence I'd argue that "any evidence defeats a complaint" is appropriate.
 On a showing of any contestable issue, the matter should be kicked over
to UDRP.

--Wendy

Kurt Pritz wrote:
> David, John and team:
> 
> I hope you find the attached staff comments on the URS Strawman useful and 
> not intrusive. We will be available to answer questions on the call.
> 
> Regards,
> 
> Kurt
> 
> 
> On 11/11/09 8:00 AM, "Jonathon Nevett" <jnevett@xxxxxxxxxxxxxxxxxxxx> wrote:
> 
> STI Team:
> 
> Attached is an attempt at a strawman proposal on the key URS issues raised at 
> our meetings.  Not everyone will agree with every tenet of the compromise, 
> but it is an attempt to do just that  . . . reach a compromise.  In some 
> instances, principles are proposed, but details are left to staff to 
> implement.  This is appropriate for a number of reasons, not the least of 
> which is our timing.
> 
> Thanks to Zahid and Kathy and the others who paved the way with the consensus 
> document.  Also, thanks to Margie who -- per yesterday's conversation -- 
> helped prepare parts of the chart.
> 
> Finally, I offer this up neither as a representative of the Registrar 
> Stakeholder Group nor of Network Solutions.
> 
> I very much look forward to continuing the discussions with the team on these 
> issues.  I hope that we can reach consensus and improve upon the ICANN 
> proposals.
> 
> Best,
> 
> Jon
> 
> 


-- 
Wendy Seltzer -- wendy@xxxxxxxxxxx
phone: +1.914.374.0613
Fellow, Silicon Flatirons Center at University of Colorado Law School
Fellow, Berkman Center for Internet & Society at Harvard University
http://cyber.law.harvard.edu/seltzer.html
http://www.chillingeffects.org/
https://www.torproject.org/