Comments on "Draft Proposed Procedure for Uniform Rapid Suspension System"

[Patrick Mevzek <contact@xxxxxxxxxxxx>]

Following the ICANN announcement at
http://www.icann.org/en/topics/new-gtlds/gnso-consultations-reports-en.htm
please find below my comments related to the proxy services report at
http://www.icann.org/en/topics/new-gtlds/draft-proposed-procedure-urs-04oct09-en.pdf


As I'm not expert on such things, reading this proposed procedure
draft and seeing it uses the exact same conditions as UDRP makes me
wondering how this new process could be worthwile, even if it uses
higher requirements for clear cut cases (where the UDRP at its
beginning was also meant to deal with clear cut cases).
All this when current UDRP providers are asking for changes in the
current UDRP procedures to have, among other things, faster turn
around.

So I'm really wondering if time and energy is well spent in defining
again a new procedure that basically tries to solve current UDRPs
shortcomings instead of fixing it. My fear is that in some years we
would again define a new procedure to fix URS shortcomings and so on
indefinitively...

Saying that the URS is a temporary procedure does not lessen my fears, as
it is known that temporary procedures, after being implemented,
happen to be kept often far beyond their due time. It is best to try
not to introduce them instead of saying they will be removed later
on, as this can never be really guaranteed.

So I would basically prefer that all current discussions related to
disputes (that is this new URS procedure, as well as current requests
by UDRP providers) be taken together, and that needed changes, if
any, be done in one procedure (the UDRP or a new one based on it)
instead of creating yet another structure and process.
Since the URS is not required for new gTLD providers, there is no
hurry to create it just right now, and more time should be taken to
study the whole area of disputes handling.
And that basis, it would be mostly against introducing this new URS
procedure.

Because, ideally, this new process would need again to be studied in
a few years to find its usefulness, competition would need to be
created at that level with more than one URS providers while
introducting the same problems as currently among UDRP providers,
etc.

Now two comments (that would basically also apply for UDRP):
- I would heavily suggest to run away as most as possible from emails
as a communication mechanism with huge Word documents attached (or
worse PDF containing only scanned images), as
most often seen. The interaction between the URS-DRP and its
"customers" can be done how the provider wishes but communications
between providers and registries and registrars 
should use better technical tools, ensuring along the road
confidentialy, integrity and authentication.
Going away from paper & fax should also be a goal.
- since registry whois show domain name status and since the EPP
protocol allow to associate a human readable message to any status,
in case of registry lock (or more precisely a combination of EPP
clientUpdateProhibited clientRenewProhibited
clientTransferProhibited), a human readable message should be
attached (and hence visible in whois) telling that a URS procedure is
being conducted for this domain name.


If there is to be a response fee, I believe that it should be fully
refundable if the current registrant wins. It should even be refunded
more than what was paid by the registrant in that case.

More information should be given about the procedure languages: the
one of the registrant? 

Point 6.2 says:
"During the Default period, the 
Registrant will be prohibited from changing content found on the site
to argue that it is 
now a legitimate use and will also be prohibited from changing the
Whois information. "
While the last part (whois information) is under the control of the
registry and will be protected thanks to the statuses applied to the
domain names, the first part (changing content found on the site - I
suppose the *web* site?) can not be enforced nor controlled by the
registry or the URS-DRP.


Point 9 says "the domain name is on hold"
I believe the term "on hold" should not be used here as in domain
name speaks it means the domain name does not resolve... while the
same point explains that there should be a website with some
explanations, so obviously the domain name still resolves.
The procedure should specify, in that case, who handles the
nameservers associated to the domain names and this specific website,
is it the registry ? the URS-DRP ?
Agreeing with some other previous comments, I feel sorry to see, once
again the confusion between Internet services and only web access, as
domain names can be used for many other things than just the web.
I would emphasize that all ICANN procedures should try very hard not 
to propagate this erroneous conception. 
The same problem is seen in point 6.2 above, and in some other
comments that describe the URS as a tool to fight "content" to be
removed from the Internet, when it should only be a tool to fight
against misuse of the domain name itself, and not what can be seen on
a website or such.

 
Point 10.2 says "10.2  If a Complainant has been held to have filed
abusive complaints on three occasions, the 
      Complaint shall be barred from utilizing the URS for one-year
following the date the last 
      of the three Complaints was determined to be abusive."
As written, abusive complaints still needs to be defined, so this is
a problem by itself.
Also here, is the complainant the trademark holder or its
representatives/lawyers ? How to deal with companies having their
various trademarks owned by some affiliates/subsidiaries ?
In case of abuse, who will really be banned from further URS
proceedings ?

Even if future access to the URS is prohibited based on this abuse
findings, other procedures such as the UDRP would still be possible,
so I'm not sure that this ban is useful in the end. Maybe replacing
it with higher fees going higher each time a previous complaint is
deemed abusive would be more useful.


See also my previous email in this forum about possible strange
interactions by this URS and the Trademark clearinghouse mechanism.

-- 
Patrick Mevzek
Dot and Co <http://www.dotandco.com/> <http://www.dotandco.net/>
<http://www.dotandco.net/ressources/icann_registrars/prices>
<http://icann-registrars-life.dotandco.net/>