ICA Counsel Philip Corwin told ICANNâs Board of Directors that they needed to take responsibility, fully review, and âownâ the recent decision by Global Domains Division (GDD) staff to try to insert Uniform Rapid Suspension (URS) in legacy gTLD contracts up for renewal â and that any further alterations of the URS and other rights protection mechanisms (RPMs) created for the new gTLD program must be addressed through the standard policymaking process and not through an âimplementationâ route that excludes some stakeholders and bypasses full and deliberative consideration.
Corwin delivered his remarks at the Public Forum held at the end of the just concluded ICANN 53 meeting held in Buenos Aires, Argentina. GDD staff maintained throughout the meeting that the registry operators for .Travel, .Cat and .Pro adopted the URS and other RPMs âvoluntarilyâ, while many of those present at the meeting questioned how voluntary that decision could be when it was proposed by GDD staff as the starting point for contract renewal negotiations.
Allowing staff to pursue this course would create a series of precedents prejudicing negotiations for major legacy gTLDs like .Org, .Net and .Com when those contracts come up for renewal. It would also prevent a balanced community discussion of not only whether the URS should be applicable to these legacy gTLDs, but if it should be altered in any way. ICANNâs Intellectual Property Constituency (IPC) recently filed comments regarding the RPMs that advocated providing domain transfer and not just suspension when a complainant prevails in a URS; lowering the burden of proof and thereby altering the original intent that the URS just be used for âslam dunkâ cases; changing the elements that must be proved by the complainant to bad faith registration or use; and requiring the loser to pay for the proceeding. With those changes the URS would become âa UDRP on steroidsâ and almost surely replace the UDRP as the preferred mechanism for rights holders â especially as the filing fee is only $500, the registrant has a shorter time to reply and a much lower word limit, and there are no provisions to opt for a three-member panel or appeal to a national court. That can hardly be regarded as a balanced approach to rights protection.
The text on which Corwinâs oral remarks were based followsâ
Good afternoon. I am Philip Corwin and this statement is made in my role as Counsel to the domain name investors and developers of the Internet Commerce Association.
When the Board met with the GNSO Council on Sunday you heard strong expressions of concern from many Councilors regarding the decision of GDD staff to propose that the PDDRP and especially the URS be the starting point for renewal of legacy gTLD registry agreements. That action amounts to repudiation of the common understanding during the development of the new gTLD RPMs that the decision as to whether they would apply to more than 140 million legacy gTLD domains would be reserved for a subsequent PDP â and that this action by GDD staff amounted to the creation of de facto Consensus Policy through the contracting process, in violation of the Bylaws.
Similarly, the comments filed in the just-closed forum for .Travelâs renewal were overwhelmingly against this action and in favor of stripping those RPMs out of that RA â and by extension, from the .Cat and .Pro RAs as well.
The concern of course is that the same staff who made the decision to propose these RPMs in the renewal contracts will be the ones to review and react to those comments.
Another concern is that GDD staff may already be planning to advocate turning the URS into a UDRP on steroids. On June 17th World Trademark Review reported that Senior Manager Fabien Betremieux told an audience in Hamburg, Germany that suggestions that the URS remedy would be transformed from domain suspension to transfer âwill be considered in the next roundâ. We have not even received the policy staff Issues Report on the new gTLD RPMs, and no one on ICANN staff should be opining on what will be considered in the way of changes because that is for the community to decide through the policy process.
IP interests have suggested a variety of changes to the URS that would convert it from a narrow supplement to the UDRP to a complete substitute â in which domain registrants would have shortened reply periods, limited ability to respond, no option of a 3-mmber panel, and no appeals access to national courts. Certainly trademark interests must have adequate means to deal with true infringement, but their rights must be balanced against those of domain registrants.
So I have two requests of the Board:
First, we need a commitment that any further alterations of the new gTLD RPMs will be made through a standard PDP. We are far past the implementation details stage and it is now crystal clear that these decisions will implicate legacy gTLDs as well.
Second, if GDD staff ignores the overwhelming weight of comments and retains the URS in the final RAs for legacy gTLDs, you need to vote up and down on those RAs. You need to âownâ that decision and in that way indicate whether you believe this GDD staff action is or is not acceptable.
This article by Philip Corwin from the Internet Commerce Association was sourced with permission from: