PDDRP Comments

[Jon Nevett <jon@xxxxxxxxxx>]

The Post Delegation Dispute Resolution Process (PDDRP) should be considered the 
final piece to the puzzle to the trademark protection overarching issue with 
regard to New Top Level Domains.  The current draft of this process, however, 
requires some refinement.

First, there should be a safe harbor for registries that don't engage itself in 
cybersquatting activities.  Registries are service providers not unlike 
telecommunications providers.  In the United States, for example, 
telecommunications companies are not liable for illegal telemarketing that 
might occur on their networks, even if they indirectly "profit" from such 
telephone usage.  They have no obligation to police their networks to listen 
into the content of such calls to see if they are unlawful.  As long as the 
telecommunications company doesn't actively participate in such illegal 
telemarketing, they cannot be held liable.  It should be clear in the PDDRP 
that registries should be exempt from liability unless they are intentionally 
acting in concert with the illegal cybersquatting activities.

Second, in order to deter frivolous and abusive complaints, the PDDRP 
complainant should pay all of the fees upfront.  It  should only be reimbursed 
by the registry if there the panel finds in the complainant's favor and awards 
the complainant its fees. 

Third, ICANN must try to resolve the dispute itself prior to the initiation of 
the PDDRP.  ICANN's compliance folks must be involved at the outset and provide 
its opinion to the parties and eventually to the panel.  There should be a 
period of Cooperative Engagement pursuant to Section 5.1 of the draft Registry 
Agreement between the registry, ICANN, and the potential complainant prior to 
the filing of a PDDRP.  After that period and hearing the allegation from the 
complainant and any response from the registry, ICANN should have the ability 
to reject any complaint that it believes would be frivolous or abusive.  The 
IRT clearly stated that the PDDRP should not create third party beneficiary 
rights in the registry agreements.  ICANN cannot wash its hands of its 
compliance responsibilities because of a PDDRP complaint.   

Fourth, the panel should be three members and not just one.  Based on the 
recent ICANN IRP panel, we can see how reasonable jurists could differ on the 
same issues.  Therefore, as a matter of policy considering the importance of 
these issues, we are better off with having three panelists rather than just 
one. 

Finally, the panel should not be able to award monetary damages to the 
complainant, just costs.  Just like the UDRP and URS awards go to stopping the 
conduct at issue and not to past damages, the PDDRP panel should not be able to 
award damages.  

The ICANN community has worked hard to achieve an important scheme of trademark 
protections in the upcoming round of New TLDs, including a procedure for 
objections for infringing top level applications, a thick Whois requirement, 
the URS, the Trademark Clearinghouse, a mandatory Trademark Claims or Sunrise 
process, and a Post Delegation Dispute Resolution Process.  All of these will 
make New TLDs a much safer place for trademarks than existing gTLDs and ccTLDs. 
 In my opinion after some tweaks to the Clearinghouse and PDDRP, the trademark 
overarching issue should be considered resolved.

Jonathon Nevett
President, Domain Dimensions, LLC