Comments on IRT "Final" Report

[Andrew Allemann <editor@xxxxxxxxxxxxxxxxxx>]

The Implementation Recommendation Team (IRT) has put forth suggestions
to combat the problem of cybersquatting and protect intellectual
property owners' rights.  As a member of the domain name owner
community, the domain name media, and the founder of an intellectual
property-based company earlier this decade, I fully support protecting
trademark owners' rights.

Both domain owners and intellectual property owners feel that the
existing mechanism for protection - namely, URDP - needs adjustment.
IRT, unfortunately, has undertaken a complete re-write of the rules
and wipes out what is essentially a good system in need of
improvement.  I firmly believe that how IRT operated is contrary to
established procedures of ICANN, and implore ICANN that IRT's
suggestions not move forward at this time.  It is a classic case study
in how not to develop and build consensus on an idea:

http://domainnamewire.com/2009/06/29/irt-classic-case-study-of-how-not-to-sell-a-plan/

Instead, ICANN should assemble a cross-functional group of experts
from the IP, domain owner, and business disciplines to work on
reforming existing trademark protections.  This must be done through
established ICANN precedent, not the top-down and private approach
undertaken by the IRT.  The end result must protect both IP owners and
domain owners.

We can reform UDRP, both to make it more affordable and faster for
rightful complainants as well as protect domain owners against
unscrupulous claims.  Over the past few months, domain owners have had
to spend thousands of dollars responding to complaints for generic
domain names such as Ant.com, CheapAutoInsurance.com, SmoothMove.com,
and RB.net.  Surprisingly, they weren't all successful in their
defense.

There is a solution to balance the needs of IP owners and legitimate
domain owners.  It should be found through a mutual and appropriate
process.

I have a few specific comments on IRT's proposals regarding URS.
These are meant to call attention to just some of the flaws in URS;
not to suggest that it is in anyway a workable or fair solution.

-This is a Band-Aid.  A domain won through URS will expire and be
registered by another person, requiring the trademark owner to
re-file.  I appreciate that merely suspending the domain will reduce
the number of fraudulent claims, but worry that this provision will be
changed.
-The costs are too low for any organization, save for an organization
backed by complainants, to run as arbitrators.  A organization backed
by complainants would be biased.
-The response period to a claim is too short, which will result in
wrongful suspensions.
-The 'abusive complaint' penalties are laughable.  In order to
significantly reduce the number of frivolous complaints under URS, any
complainant who fails a single time should be barred from filing
another complaint for at least one year.  Furthermore, this should
apply broadly to who the complainant is.  I foresee a big loophole
whereby a company files under alternative complainant names.  Finally,
sanctions should also apply to an individual lawyer and law firm
filing URS cases for its clients.  We all know there are lawyers who
repeatedly abuse UDRP.

Let's do this right.  Let's find a solution to protect all legitimate
parties.  Let's do it through the appropriate process.

Respectfully,
Andrew Allemann
DomainNameWire.com