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

["Andrei Kolesnikov" <andrei@xxxxxxxx>]

Jon, all – sorry for missing a lot of calls for the reason of traveling and 
dealing with very practical issue: launching of Russian country IDN. Just a 
quick update regarding UDRP/URS and language here…

First of all, we seriously looked at the issue of launching UDRP for .RU and 
later for .РФ domains. Based on the current Russian legislation, any resolution 
of UDRP regarding Russian domain administrators has no legal impact and so has 
no practical meaning. Second, we’ve looked at dozens of court cases regarding 
domain disputes here. The situation is not very good.  It’s about 50/50 – there 
are multiple cases lost by very serious multi-national companies. The violators 
usually use Mike’s example: “Yahoo is a well known Russian bird” and go away. 
Third: the cases against SITES (content  - not domains) that violate copyrights 
(fake sites, malicious adv sites, typo-traffic generating sites) are 
successful. This bring Russian judges to the very basic conclusion: domain name 
by itself can not violate somebody’s right until the content evidence (colors, 
layouts, texts, logos, other materials) is found, and this practice being a 
direction for Russian courts for the past years. 

Regarding the language. If apply a simple logic, the administrator of the 
domain яху.blablabla will commit, that яху (yahoo) is a Russian bird and will 
write the description in Russian-Cyrillic (80% of Russians simply can not write 
it in English). It brings us to the conclusion, that Russian-reading expert can 
understand what is written… and this logical chain goes on. 

Maybe there is a reason again to slice the big-time-global-issue per script, 
restrict the ability of multi-script registration (only latin, only russian, 
only arabic, etc.) for new gTLDs and apply a common sense legal practice: latin 
being under umbrella of America / Europe practice, Chinese under China’s area, 
Japan – Japan, etc. – with established over the time cross reference between 
“Continental” clearing houses. I know, this sounds radical, but it based on the 
number of issues I’m dealing right now in Russia with IDN: it’s not allowed to 
use multiple scripts and we apply 4 month priority registration for TMs 
registered with Cyrillic in cooperation with Rospatent, our local TM “ministry” 
(it is started on 25th of November and goes until 25th of March 2010). Per 
script principle can also be applied for gTLDs. I don’t see much difference, 
except a lot of politics.

 

--andrei  

 

From: owner-gnso-sti@xxxxxxxxx [mailto:owner-gnso-sti@xxxxxxxxx] On Behalf Of 
Nevett, Jonathon
Sent: Tuesday, November 17, 2009 6:58 PM
To: wendy@xxxxxxxxxxx; kurt.pritz@xxxxxxxxx
Cc: gnso-sti@xxxxxxxxx
Subject: Re: [gnso-sti] URS Strawman Proposal 111109.xls

 

Wendy and all,

What about clear and convincing evidence that there is no genuine issue of 
material fact?  This is similar to the IRT recommendation of clear and 
convincing evidence that there is not contestable issue.

We need to protect against a form answer abused by cybersquatters that would 
get them over the hump.

Alan,

On the language issue, it would be helpful to understand how this is handled 
currently with UDRP cases. Could the URS be handled the same way for now and 
include this issue in the scope of a UDRP/URS review?  Just a thought. Changing 
Whois protocols or adding new fields during registrations would be of concern 
to my community. 

Sorry I missed the call.  Data works better than voice where I am.

Jon

----- Original Message -----
From: Wendy Seltzer <wendy@xxxxxxxxxxx>
To: Kurt Pritz <kurt.pritz@xxxxxxxxx>
Cc: Nevett, Jonathon; GNSO STI <gnso-sti@xxxxxxxxx>
Sent: Tue Nov 17 09:51:55 2009
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/