Statement on IRT final report by Leap of Faith Financial Services Inc.

[George Kirikos <gkirikos@xxxxxxxxx>]

Hello,


We include and reiterate our earlier substantial comments on the IRT, indeed 
with novel approaches (such as the concept of easements), that were ignored by 
the IRT, by reference:

http://forum.icann.org/lists/irt-draft-report/msg00000.html
http://forum.icann.org/lists/irt-draft-report/msg00015.html
http://forum.icann.org/lists/irt-draft-report/msg00016.html
http://forum.icann.org/lists/irt-final-report/msg00000.html

As we have stated previously, we have grave concerns about the IRT, and the 
"answers" provided by the members of the IRT team have been spurious. To give 
just two concrete examples (there are many more if one reads our prior comments 
submitted in the official comment periods):

a) No good reason has been provided as to why the IRT proposes that *all* 
domain names, irregardless of age, should be subject to the URS, especially 
given that markholders ultimately would want the URS to apply to legacy TLDs 
such as com/net/org. The URS is an extraordinary procedure that would take down 
a domain name with short notice (so short that a registrant on vacation may not 
receive actual notice of a complaint). Such an extraordinary procedure should 
be targeted only towards the most abusive domain names, one where "time is of 
the essence." Time is not of the essence if a domain name is 10 years old! The 
onus should be on markholders to not delay in bringing complaints if there is 
truly a matter that is "urgent" and requires the URS. We proposed that the URS 
either apply only to domains younger than a certain age (e.g. 6 months), or 
that the time to respond to complaints be a function of the age of the domain 
(e.g. 15 days + the age of the
 domain in months). Businesses and consumers require certainty and due process, 
and a system like the URS as proposed that would threaten their legitimate 
domain name, one that they've owned for years, denies them both certainty and 
due process.

b) No good reason has been provided as to why the IRT proposes to limit 
notification to registrants to only 2 emails and 1 letter by post for the URS. 
Email is unreliable given the amount of spam that exists, and international 
mail might not be received in time to respond to a complaint, given the slow 
delivery times of the international postal system. We specifically pointed to 
opt-in fax as a highly reliable system to notify registrants of complaints, and 
the IRT provides excuses that leave objective people incredulous. Footnote 30 
of the report stated:

"The IRT decided that such requirements would add significant complexity and 
cost to the system due to time zones and national and local laws regarding 
faxing and calling."

This is simply astonishing for the IRT to say, given that (a) the faxes are 
100% opt-in, and (b) the UDRP has been providing fax notification for over 10 
years without issues. The cost to send a 1-page fax notification of a complaint 
(using email to fax gateways) is on the order of 10 cents, far below the postal 
delivery stamp fees.

A legitimate URS complaint by a markholder will not be impacted if the 
registrant receives proper and timely notification (actual notice) by fax. The 
URS was supposedly intended for "clear cut" cases, and notification shouldn't 
impact the registrant's ability to defend a "clear cut" case of abuse.

However, illegitimate and frivolous URS complaints with weak claims that hope 
to win by default due to lack of registrant notification will greatly benefit 
by lack of fax notification, lack of actual notice. A legitimate registrant 
will strongly defend their domain name and is hurt by lack of the ability to 
respond and prepare a defence.

The only logical conclusion is that the IRT has intentionally acted to put the 
rights of illegitimate and frivolous URS complainants with weak claims ahead of 
legitimate domain registrants with strong defences, by putting up spurious 
obstacles to the domain registrants receiving actual notice and due process. 
This is no surprise given the IP constituency's pro-complainant dominance of 
the IRT process.

While the IRT members posture in public that their report was a "compromise" I 
hope it is clear from just the above two cases (and there are more) that it 
truly was not any compromise, but was an extreme and unbalanced report.

Legitimate domain registrants like my company and those in the BC and other 
constituencies are prepared to work with the IP constituency to come up with a 
balanced solution within the GNSO process. But, until such time, the IRT report 
should continue to draw skepticism within the ICANN community, and be rejected.

Sincerely,

George Kirikos
President
Leap of Faith Financial Services Inc.
http://www.leap.com/