comments of Tucows Inc.

[elliot noss <enoss@xxxxxxxxxx>]

Below (and reproduced in the attached text file) are comments on the  
IRT report on behalf of Tucows Inc., a large registrar, a brand owner  
and a registrant.
INTRODUCTION
=============
The IRT process provides the ICANN community for an unique opportunity  
to accomplish important goals beyond those originally envisioned.
There is no question that the existing process for trademark owners to  
enforce and police their marks is expensive and cumbersome. As a  
trademark holder, Tucows has had to deal with policing its trademark  
on the Internet for the last dozen years. We directly experience the  
challenges in the current regime and would immediately make recourse  
to the URS to deal with issues on an expedited basis. We support this  
important goal.
In addition to that important goal there are two other peripheral  
benefits that are available to the ICANN community in the current  
instance. A useful model for some policy development situations and  
the opportunity to change the tenor of the past ten years of ICANN  
policy development.
Virtually all participants in the current policy development process  
find it slow and cumbersome. There are numerous examples of policy  
that, by the time it is fully developed as consensus policy, is  
already out of date. The only parties that could find the current  
process rewarding in any way are those who are focused on ensuring  
that nothing happens. The current process makes that less than noble  
goal easily achievable. The IRT process holds the potential to  
demonstrate an alternative that may be usable in appropriate  
circumstances.
In addition, we observe that ICANN's history has been marked by IP  
interests being too often pitted against Registrars and Registrants.  
We find this sad and counter-productive. We believe that this tension  
has worked to the benefit of bad actors on both sides of the ledger.  
We believe that the opportunity exists to change the dynamic to the  
more appropriate "good guys" vs. "bad guys". When positive actors on  
both sides of these issues are fighting with each other it works to  
the benefit of bad actors. The ICANN meeting in Sydney was an  
important first step in changing the historical dynamic. We caution  
all parties that this will take care and diligence as we all have a  
long history of behaving one way and it will be extremely easy to slip  
back into previous habits as well as for those focused on halting  
progress to recreate hostilities.
COMMENTS ON THE URS
=====================
With that said, we make the following specific comments and  
suggestions. We have limited our comments to the specific  
implementation of the URS. This is not because we do not have any  
comments on other areas but rather because we felt that focusing our  
comments would allow us to be most productive.
Our goal with the below comments was primarily to help design a URS  
that would allow all parties to have greater confidence in the  
integrity of the process. Administrative processes are difficult to  
design and we believe that the most fundamental design principle is  
that "justice need not only be done, but that justice need be seen to  
be done".
With that backdrop we recommend the following four changes to the  
existing URS design:
1. Competitive Service Providers

There should be numerous URS service providers ("USPs") and  
competition among them. This will accomplish two important goals. It  
will make the the cost of URS proceedings more reasonable and, more  
importantly, it will make the administration of names going through a  
URS proceeding much more easily managed by the complainant.
On this second point, the ability for a complainant to manage URS  
processes in the same environment as they manage their domain  
registrations will be extremely efficient and will allow trademark  
holders to more simply initiate, track and follow through on URS  
proceedings.
A peripheral benefit of this approach will be to de-politicize the  
process of choosing a single supplier. Any such process wherein ICANN  
is choosing a single supplier to provide what will inevitably be a  
lucrative service will become political as will the setting of prices  
under such contract. One can only imagine the RFP or tender process  
and the inevitable studies by experts that would go into determining a  
"fair and appropriate price". Any time this can be avoided in the  
ICANN process we should seek to do so, especially in a circumstance  
like this where the alternative is far superior in other respects.
2. Separation of business processes and adjudication

The concept of competitive USPs is dependent upon the separation URS- 
related business processes and the actual adjudication.
In reviewing the URS process as laid out in the IRT report, it  
contains numerous steps that are simple business processes. These  
include the commencing of a URS, the various notifications to parties,  
the communication and provisioning with registries and allowing the  
parties to the process the ability to track and manage their  
participation.
By contrast the actual adjudication, while the central aspect of the  
matter, is a simple single step. It simply requires the adjudicator to  
receive and review the report and provide her or his finding.
It is important in this separation for the process to work seamlessly  
such that any USP can work with any adjudicator. These two pieces  
should work together in such a way that it is completely invisible to  
the parties to the matter.
3. Random assignment of adjudicators

It is highly desirable that the assignment of adjudicators to matters  
is done on a random basis. In the current UDRP the process of shopping  
for panelists is not desirable and detracts from the confidence that  
parties can have in the process. It also creates incentives for  
panelists to decide in a certain way. One need only look at the number  
of panelists who market themselves on the basis of their successful  
complainant representation to see this issues. This is not to suggest  
that panelists do so, but rather that the design of a process that  
deals with important rights must have as much structural integrity as  
possible.
We suggest a simple process wherein the USP informs ICANN of the  
commencement of a matter and that matter is assigned an adjudicator.  
We suggest deeper design of this assignment process be taken outside  
this document, but suffice it to say design here would be fairly  
trivial.
4. Adjudicators cannot also be advocates

It is extremely important that URS adjudicators are not also advocates  
under the existing UDRP. While it is desirable that UDRP panelists  
provide an important source for URS adjudicators we feel strongly that  
individuals who choose to act for either complainants or respondents  
in the current UDRP process are precluded from also being adjudicators  
under the URS.
We understand that things were very different at the onset of the UDRP  
process and that finding parties with relevant skills was quite  
difficult in the 1999-2000 timeframe. The world has moved on. Domain  
name practice and the number of lawyers and other professionals with  
exposure to domain name legal issues in particular and Internet issues  
in general has expanded by at least one, if not two orders of magnitude.
Again, this is central to integrity in the process, to ensuring that  
all parties to the process have confidence in it and in creating a  
process that has structural integrity.
Conclusion

We note that adopting the above four recommendations will still  
require two central services, accrediting adjudicators and USPs as  
well as assigning adjudicators to specific matters. Our recommendation  
would be that ICANN itself preform these functions with the help of  
the appropriate members of the community.
Thank you for the opportunity to submit comments and for the hard work  
with good intentions of those involved.
Respectfully,
Elliot Noss
CEO
Tucows Inc.

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\f0\fs24 \cf0 Below are comments on the IRT report on behalf of Tucows Inc., a 
large registrar, a brand owner and a registrant.\
\
INTRODUCTION\
=============\
The IRT process provides the ICANN community for an unique opportunity to 
accomplish important goals beyond those originally envisioned.\
\
There is no question that the existing process for trademark owners to enforce 
and police their marks is expensive and cumbersome. As a trademark holder, 
Tucows has had to deal with policing its trademark on the Internet for the last 
dozen years. We directly experience the challenges in the current regime and 
would immediately make recourse to the URS to deal with issues on an expedited 
basis. We support this important goal.\
\
In addition to that important goal there are two other peripheral benefits that 
are available to the ICANN community in the current instance. A useful model 
for some policy development situations and the opportunity to change the tenor 
of the past ten years of ICANN policy development.\
\
Virtually all participants in the current policy development process find it 
slow and cumbersome. There are numerous examples of policy that, by the time it 
is fully developed as consensus policy, is already out of date. The only 
parties that could find the current process rewarding in any way are those who 
are focused on ensuring that nothing happens. The current process makes that 
less than noble goal easily achievable. The IRT process holds the potential to 
demonstrate an alternative that may be usable in appropriate circumstances.\
\
In addition, we observe that ICANN's history has been marked by IP interests 
being too often pitted against Registrars and Registrants. We find this sad and 
counter-productive. We believe that this tension has worked to the benefit of 
bad actors on both sides of the ledger. We believe that the opportunity exists 
to change the dynamic to the more appropriate "good guys" vs. "bad guys". When 
positive actors on both sides of these issues are fighting with each other it 
works to the benefit of bad actors. The ICANN meeting in Sydney was an 
important first step in changing the historical dynamic. We caution all parties 
that this will take care and diligence as we all have a long history of 
behaving one way and it will be extremely easy to slip back into previous 
habits as well as for those focused on halting progress to recreate 
hostilities.\
\
COMMENTS ON THE URS\
=====================\
With that said, we make the following specific comments and suggestions. We 
have limited our comments to the specific implementation of the URS. This is 
not because we do not have any comments on other areas but rather because we 
felt that focusing our comments would allow us to be most productive.\
\
Our goal with the below comments was primarily to help design a URS that would 
allow all parties to have greater confidence in the integrity of the process. 
Administrative processes are difficult to design and we believe that the most 
fundamental design principle is that "justice need not only be done, but that 
justice need be seen to be done".\
\
With that backdrop we recommend the following four changes to the existing URS 
design:\
\
1. Competitive Service Providers\
\
There should be numerous URS service providers ("USPs") and competition among 
them. This will accomplish two important goals. It will make the the cost of 
URS proceedings more reasonable and, more importantly, it will make the 
administration of names going through a URS proceeding much more easily managed 
by the complainant.\
\
On this second point, the ability for a complainant to manage URS processes in 
the same environment as they manage their domain registrations will be 
extremely efficient and will allow trademark holders to more simply initiate, 
track and follow through on URS proceedings.\
\
A peripheral benefit of this approach will be to de-politicize the process of 
choosing a single supplier. Any such process wherein ICANN is choosing a single 
supplier to provide what will inevitably be a lucrative service will become 
political as will the setting of prices under such contract. One can only 
imagine the RFP or tender process and the inevitable studies by experts that 
would go into determining a "fair and appropriate price". Any time this can be 
avoided in the ICANN process we should seek to do so, especially in a 
circumstance like this where the alternative is far superior in other respects.\
\
2. Separation of business processes and adjudication\
\
The concept of competitive USPs is dependent upon the separation URS-related 
business processes and the actual adjudication.\
\
In reviewing the URS process as laid out in the IRT report, it contains 
numerous steps that are simple business processes. These include the commencing 
of a URS, the various notifications to parties, the communication and 
provisioning with registries and allowing the parties to the process the 
ability to track and manage their participation.\
\
By contrast the actual adjudication, while the central aspect of the matter, is 
a simple single step. It simply requires the adjudicator to receive and review 
the report and provide her or his finding.\
\
It is important in this separation for the process to work seamlessly such that 
any USP can work with any adjudicator. These two pieces should work together in 
such a way that it is completely invisible to the parties to the matter.\
\
3. Random assignment of adjudicators\
\
It is highly desirable that the assignment of adjudicators to matters is done 
on a random basis. In the current UDRP the process of shopping for panelists is 
not desirable and detracts from the confidence that parties can have in the 
process. It also creates incentives for panelists to decide in a certain way. 
One need only look at the number of panelists who market themselves on the 
basis of their successful complainant representation to see this issues. This 
is not to suggest that panelists do so, but rather that the design of a process 
that deals with important rights must have as much structural integrity as 
possible.\
\
We suggest a simple process wherein the USP informs ICANN of the commencement 
of a matter and that matter is assigned an adjudicator. We suggest deeper 
design of this assignment process be taken outside this document, but suffice 
it to say design here would be fairly trivial.\
\
4. Adjudicators cannot also be advocates\
\
It is extremely important that URS adjudicators are not also advocates under 
the existing UDRP. While it is desirable that UDRP panelists provide an 
important source for URS adjudicators we feel strongly that individuals who 
choose to act for either complainants or respondents in the current UDRP 
process are precluded from also being adjudicators under the URS.\
\
We understand that things were very different at the onset of the UDRP process 
and that finding parties with relevant skills was quite difficult in the 
1999-2000 timeframe. The world has moved on. Domain name practice and the 
number of lawyers and other professionals with exposure to domain name legal 
issues in particular and Internet issues in general has expanded by at least 
one, if not two orders of magnitude.\
\
Again, this is central to integrity in the process, to ensuring that all 
parties to the process have confidence in it and in creating a process that has 
structural integrity.\
\
Conclusion\
\
We note that adopting the above four recommendations will still require two 
central services, accrediting adjudicators and USPs as well as assigning 
adjudicators to specific matters. Our recommendation would be that ICANN itself 
preform these functions with the help of the appropriate members of the 
community.\
\
Thank you for the opportunity to submit comments and for the hard work with 
good intentions of those involved.\
\
Respectfully,\
Elliot Noss\
CEO\
Tucows Inc.}