ICANN: Public Interest Commitment Dispute Resolution Procedure Finalized

ICANN new generic Top Level Domains logoThe Public Interest Commitment Dispute Resolution Procedures (PICDRP) is finalized and now available

ICANN new generic Top Level Domains logoThe Public Interest Commitment Dispute Resolution Procedures (PICDRP) is finalized and now available.

The PICDRP is a procedure created to address potential complaints that a Registry Operator may not be complying with its voluntary or mandatory commitments as identified in Specification 11 of their Registry Agreement.

A draft procedure was published for public comment in March 2013.  ICANN considered the inputs received from the draft procedures and published a revised PICDRP for comment in October 2013.  The approved PICDRP incorporates the feedback received from both public comment forums.

Learn more about the PICDRP and other Post-Delegation Dispute Resolution Procedures (PDDRPs) »

This ICANN announcement was sourced from:
newgtlds.icann.org/en/announcements-and-media/announcement-3-19dec13-en

ICANN: Call for Expressions of Interest (EOI) for Public Interest Commitment Dispute Resolution Procedure (PICDRP) Standing Panel Members

ICANN new generic Top Level Domains logoICANN is seeking expressions of interest to serve on the PICDRP Standing Panel

ICANN new generic Top Level Domains logoICANN is seeking expressions of interest to serve on the PICDRP Standing Panel.

Background

  1. As part of the New gTLD Program, ICANN has put in place the Public Interest Commitment Dispute Resolution Procedure [PDF, 208 KB] (“PICDRP”) to address reports of a Registry Operator’s non-compliance with one or more of the public interest commitments included in Specification 11 of its Registry Agreement with ICANN.
  2. During the compliance review and investigation process for a report submitted to ICANN under the PICDRP, ICANN may call upon the Standing Panel to review one or more reports in order to evaluate whether the Registry Operator was or was not in compliance with Specification 11 of the Registry Agreement.

Composition of Standing Panel

  1. The Standing Panel shall consist of a minimum of three members, with more members to be added as deemed necessary. Not all members of the Standing Panel are necessary to the consideration of each report referred by ICANN.
  2. The Standing Panel members should have diversity in geographic and cultural representation. Diversity of experience will be considered in completing the composition of the Panel.

Proposed Qualifications of Standing Panel Members

  1. In consideration of the scope and areas of expertise required, that Standing Panel members, in the aggregate, should have expertise and significant knowledge in the following (or similar) aspects/areas.
    1. Online content
    2. Public policy
    3. Trademark protection
    4. International dispute resolution
    5. Cultural studies
    6. Judicial and/or legal experience
    7. DNS technical experience
    8. Regulatory background
    9. Sociological research experience
    10. Contract interpretation experience
    11. Licensing experience
    12. Cybersecurity
  2. Panel members should have demonstrated recognition of expertise and knowledge through high-level positions, peer group recognition, and/or history of publications/presentations on relevant topics.

Conflict of Interests

All Panel members must be independent from ICANN (i.e., not an ICANN employee; not a member of any ICANN Sponsoring Organization or Advisory Committee; not affiliated with any registrar or registry holding a contract with ICANN). Further, all Panel members must adhere to ICANN’s conflicts of interest policy and annually complete a Conflicts of Interest Disclosure Form.

Time Commitment

  1. To keep the costs and burdens of evaluation as low as possible, absent exceptional circumstances, the Standing Panel is expected to conduct its proceedings by email, by telephone and otherwise via the Internet.
  2. It is anticipated that the Standing Panel may start to have matters referred to it by ICANN within one month of the Panel formation. The members of the Standing Panel will be required to review reference and training materials prior to receiving matters such that the Panel members understand the Public Interest Commitments Dispute Resolution Process. For each matter referred, the Standing Panel will be expected to evaluate compliance by the Registry Operator and report its evaluation results to ICANN. The Standing Panel is expected to deliver its evaluation results to ICANN within 15 days of reference by ICANN.
  3. At present it is unclear how many matters will be referred to any given Standing Panel member; over time this may become more predictable based on the nature and number of the reports submitted.

Fees for Service on Standing Panel

Fees to be determined based on, among other things, proposals received.

Terms of Standing Panel Member

For the purpose of continuity and consistency, the terms of Standing Panel members will be staggered. For a start, the terms of two of the Standing Panel member shall be two (2) years and the term of the third member shall be one (1) year. Subsequent terms of new members and renewal of terms shall be two (2) years and members, with agreement from ICANN, are allowed to renew for a maximum of two (2) terms.

Timing

It is anticipated that the Standing Panel membership will be announced by end of January or early February 2014.

Expressions of Interest

Expressions of Interest, which will be maintained as confidential, should be sent to PICDRP-SP-EOI@icann.org no later than 20 January 2014. Respondents are urged to read the PICDRP [PDF, 208 KB] prior to submitting an Expression of Interest.

This ICANN announcement was sourced from:
newgtlds.icann.org/en/announcements-and-media/announcement-4-19dec13-en

Domain Name Dispute Regulation: Comparative Analysis by Anoop Kumar, National Academy of Legal Studies and Research

Abstract: The 21st century is being nourished in the shadow of a borderless system, known as internet. It has been beneficial to all in every walk of their lives. If we have to send a letter, we do not move to the nearby post-office, rather switch on our computer and log into our email to send the mail. We do not bother to rush to the railway or airport agents to book our tickets; rather we get it booked through internet. In a nutshell, internet has revolutionised the system of our day-to-day lives and communications world like nothing before. It has acquired a significant place in our lives

Abstract: The 21st century is being nourished in the shadow of a borderless system, known as internet. It has been beneficial to all in every walk of their lives. If we have to send a letter, we do not move to the nearby post-office, rather switch on our computer and log into our email to send the mail. We do not bother to rush to the railway or airport agents to book our tickets; rather we get it booked through internet. In a nutshell, internet has revolutionised the system of our day-to-day lives and communications world like nothing before. It has acquired a significant place in our lives.

Also, it has emerged as a world-wide broadcasting capability, a mechanism for information dissemination, and a medium for collaboration and interaction between individuals without any border. The growing use of internet in the present world can be witnessed by the survey reports of various agencies. The survey report of 2012, submitted by the Internet World Stats, reveals of all the internet users across the globe, the majority belonged to Asia with 44.8% of the total internet users in 2012.

To download this paper in full, go to:
ssrn.com/abstract=2311163

ICANN Heads “Home” To LA For October 2014 Meeting

ICANN logoAt the ICANN Board meeting held on 18 May, the Board agreed the October 2014 meeting will be held in Los Angeles

ICANN logoAt the ICANN Board meeting held on 18 May, the Board agreed the October 2014 meeting will be held in Los Angeles.

The meeting, the third for the year, will be held from 12 to 17 October and follows “a thorough review of all available meeting venues in North America and finds the one in Los Angeles, California to be the most suitable.”

The meetings in 2014 will therefore be held in Singapore (23-27 March), London (22-26 June) and LA.

Among other decisions in the board meeting, the Board also approved “the application of ACDR [Arab Center for Dispute Resolution] to become a UDRP provider, and advises the President and CEO, through the General Counsel’s Office, to enter into discussions with ACDR regarding the process for ACDR’s provision of UDRP services.”

Role of ICANN in Internet Domain Name Dispute Resolution by S.V. Damodar Reddy

Abstract: ICANN is an apex authority responsible for the administration of domain names, IP address numbers and protocol parameters. The domain name is much like an entry in a phone book. Computers communicate by using numbers called IP addresses to contact each other, much like we use a phone number to dial a specific person’s phone

Abstract: ICANN is an apex authority responsible for the administration of domain names, IP address numbers and protocol parameters. The domain name is much like an entry in a phone book. Computers communicate by using numbers called IP addresses to contact each other, much like we use a phone number to dial a specific person’s phone.

There are numerous domain name disputes that have come up for consideration of courts all over the world. To name a few, Intermatic vs. Toeppen, Actmedia Inc. vs. Active Media Int’l, Inc., Panavision vs. Toeppen in the USA, British Telecommunications Plc. vs. One in a Million Ltd., Marks & Spencer’s vs. One-in-a-Million in the UK; and Yahoo.com vs. Akash Arora, Rediff Communication vs. Cyberbooth & Anr, Tata Sons Ltd. vs. Monu Kasuri & Others, Satyam Infoway Ltd. vs. Sifynet Solutions Pvt. Ltd., in India are of importance. It was held that Internet domain names are subject to the same legal norms applicable to other intellectual properties such as trademarks.

This paper, originally published in The IUP Law Review, is available for download from:
ssrn.com/abstract=2243481

WIPO Misleads Again On 2012 Cybersquatting Statistics

Trademark holders filed a record 2,884 cybersquatting cases covering 5,084 domain names with the WIPO Center in 2012 under procedures based on the Uniform Domain Name Dispute Resolution Policy (UDRP). This represents an increase of 4.5 percent over the record established in 2011.

Trademark holders filed a record 2,884 cybersquatting cases covering 5,084 domain names with the WIPO Center in 2012 under procedures based on the Uniform Domain Name Dispute Resolution Policy (UDRP). the organisation announced. This represents an increase of 4.5 percent over the record established in 2011.But domain name registrations grew by 12 percent in the year according to Verisign’s latest Domain Name Industry Brief. So while WIPO does not handle dispute resolution for all top level domains, it would be reasonably safe to say disputes over domain names are growing at a slower rate than actual registrations are increasing.It is not to say that cybersquatting is not a serious issue for trademark holders. It obviously is. But WIPO constantly over exaggerates how big a deal the growth in disputes actually is. Plus WIPO added two more, albeit minor, ccTLDs in 2012, namely .TZ (Tanzania) and .PW (Palau).Since the UDRP’s launch in December 1999, WIPO has received over 25,500 UDRP based cases, covering some 47,000 domain names across the TLDs they handle dispute resolution for.In 2012 there were complainants and respondents from 120 countries, ten countries more than the 2011 WIPO caseload. The 2012 caseload was decided by 341 WIPO panellists from 48 countries, with 13 different languages of proceedings, namely (in order of frequency) English, Spanish, Chinese, French, Dutch, German, Portuguese, Turkish, Korean, Romanian, Italian, Russian, and Czech.Among WIPO cases in 2012, ccTLDs accounted for almost 12 percent of filings, with 67 national domain registries now connected to WIPO domain name dispute resolution services.The top three areas of complainant activity in 2012 were retail, fashion and banking and finance. The caseload featured many well-known names from business as well as public interest sectors. Of the gTLD cases filed with WIPO in 2012, three quarters (74.8%) concerned .com registrations. The increased filings related to fashion and luxury brands reflect in part a growth in the number of cases filed by brand owners alleging counterfeiting via the web pages offered under the disputed domain name.Parties settled around one out of five WIPO cases before reaching panel decision. Applying UDRP jurisprudence, WIPO panels in 2012 found evidence of cybersquatting in 91 percent of all decided cases.”This is a significant number and, as far as [Doug Iseneberg knows], this is the first time that data about settlements has been released by any UDRP service provider,” he wrote on his Isenberg on Domains blog. “It’s an especially important data point at WIPO, which routinely offers partial refunds to complainants in UDRP proceedings terminated by the parties prior to the appointment of a panel.”On applying UDRP jurisprudence, Isenberg writes “this is also an enlightening number, as it seems to indicate that more disputes are ending in favour of trademark owners, which historically have obtained transfers in just over 85 percent of all domain name disputes at WIPO.”

ICA Comments on ACDR’s Revised Application to Provide UDRP Services by Philip Corwin, Internet Commerce Association

Internet Commerce Association logoSeveral weeks ago, ICA intervened with ICANN’s Board to request that the revised application of the Arab Center for Dispute Resolution (ACDR) be withdrawn from its Consent Agenda and put out for public comment

Internet Commerce Association logoSeveral weeks ago, ICA intervened with ICANN’s Board to request that the revised application of the Arab Center for Dispute Resolution (ACDR) be withdrawn from its Consent Agenda and put out for public comment. (see internetcommerce.org/ACDR_UDRP). The Board complied, which we appreciate, in light of the fact that the application had lain dormant for two and a half years. (see internetcommerce.org/ACDR-UDRP_Board_Deferral)

Last Friday ICA filed its comment on the revised ACDR proposal. While the revised application has some modest improvements compared to the 2010 version, there are still many unanswered questions – particularly how ACDR will assure that proposed panelists with no UDRP experience will receive adequate training, what steps will be taken to assure that the full panelists roster will be utilized on an unbiased basis, and how ACDR will assure that its UDRP adjudications are consistent with prevailing practice and don’t develop in a manner that encourages forum shopping by complainants.

However, regardless of the merits of this particular application, ICA will continue to oppose the accreditation of the ACDR or any other potential UDRP provider until ICANN adopts an enforceable mechanism to assure uniform disposition of UDRP cases regardless of which arbitration provider is selected for their resolution. It is simply inexcusable that ICANN accredits UDRP providers — and thereby provides them with the power to extinguish or transfer domains — when there is no standard contract that sets enforceable standards. Given the value of many domains and the basic rights that any registrant is entitled to, we intend to keep pushing for ICANN to do the right and responsible thing.

While the initial ACDR comment period closed on March 22nd, the reply period is open until April 13th – anyone who wishes to file a comment can still do so by going to www.icann.org/en/news/public-comment/acdr-proposal-01mar13-en.htm.

The text of ICA’s comment letter follows–

 

VIRTUALAW LLC

Philip S. Corwin, Founding Principal
1155 F Street, NW  Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
psc@vlaw-dc.com

 

                                                                                                March 22, 2013

 

By E-Mail

Internet Corporation for Assigned Names and Numbers

12025 Waterfront Drive, Suite 300

Los Angeles, CA 90094-2536

Re: Revised Proposal of the ACDR to Serve as a UDRP Dispute Resolution Service Provider

Dear ICANN:

I am writing on behalf of the members of the Internet Commerce Association (ICA). ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. ICA members own and operate approximately ten percent of all existing Internet domains on behalf of their own domain portfolios as well as those of thousands of customers.

These comments reflect our views on the  “Revised Proposal of the ACDR to Serve as a UDRP Dispute Resolution Service Provider” that was posted for public comment on March 1. 2013 at www.icann.org/en/news/public-comment/acdr-proposal-01mar13-en.htm.

 

Executive Summary

The major points made in this comment letter are:

  •          ICA continues to oppose the accreditation of the ACDR or any other potential UDRP provider until ICANN adopts an enforceable mechanism to assure uniform disposition of UDRP cases regardless of which arbitration provider is selected for their resolution.
  •          In the absence of such a mechanism the potential for forum shopping at the expense of registrant rights remains a major concern for ICA members.
  •          ACDR’s application continues to raise questions about the qualifications and preparatory training of many of its proposed panelists, as well as its overall commitment to administering UDRP cases in a fashion that is consistent with established practices.

 

Discussion

Prior Background

The ICA previously commented on ACDR’s request to become an accredited Uniform Dispute Resolution Policy (UDRP) provider when it was first put out for public comment in September 2010. Our full statement can be found at  forum.icann.org/lists/acdr-proposal/msg00005.html; we ask that it be incorporated in conjunction with this comments because most of the points raised at that time remain highly relevant.

The Executive Summary of that comment letter made the following points:

  •           ICA strongly opposes the accreditation of the ACDR or any other new UDRP arbitration provider until ICANN establishes a standard contract or other uniform and enforceable agreement with all providers of UDRP services.
  •          Such a standard agreement is the only means of assuring all business entities that have made substantial investments in acquiring and developing domains of procedural and substantive due process when a UDRP action is initiated by or against them.
  •          A standard agreement is also the only means by which to prevent forum shopping, by which newly accredited providers seek to influence complainants’ arbitrator choice by further tilting the system against registrants.  We have already witnessed the CAC attempt this through their proposal to offer an unacceptably condensed version of the UDRP through amendment of their Supplement Rules. ACDR’s request that they be allowed to process up to 5,000 cases during their initial start-up period – an astronomical projection that is higher than the total combined number of annual case arbitrations administered by the two leading UDRP providers – can only raise questions about how they intend to attract many thousands of filings.
  •          Regardless of whether ICANN establishes and enters into such standard UDRP provider agreement, the ACDR’s Proposal contains numerous material deficiencies that require its rejection by ICANN.

Two and one half years later, ICANN has taken no actions to address the concerns raised in the first two bullet points. There continues to be no “standard contract or other uniform and enforceable agreement with all providers of UDRP services” or even the initiation of a process leading to one – notwithstanding the fact that the approaching advent of more than a thousand new gTLDs, including International Domain Names IDNs) in Non-Latin scripts, as well as ICANN’s own ongoing outreach to the developing world and diversification of its own operational locations, would indicate that there will inevitably be applications from new entities seeking to be UDRP providers based in regions other than Europe and the United States, where the two dominant providers (WIPO and NAF) are now located. It astounds us that ICANN, after devoting so much time and effort to protection of trademark rights at new gTLDs, has failed to undertake similar steps relating to its own UDRP notwithstanding divergent approaches to enforcement of IP and domain rights in various national jurisdictions and geographic regions.

More disturbingly, in addition to taking no steps to better ensure uniformity of UDRP administration, ICANN recently announced that NAF would be the sole provider of Uniform Rapid Suspension (URS) complaints for the foreseeable future, notwithstanding NAF’s shoddy record of allocating nearly half its UDRP caseload to less than five percent of its listed panelists (dnattorney.com/NAFdomainnamedisputestudy2012.shtml); as well as ICANN’s receipt of applications to provide URS arbitration from new providers with estimable credentials and innovative approaches.

Further, despite the unanimous recommendation of the STI-RT that “ICANN should discourage forum shopping among URS service providers through its URS implementation and contracts”.   (emphasis added – gnso.icann.org/issues/sti/sti-wt-recommendations-11dec09-en.pdf), for now it appears that NAF and ICANN are bound solely by a 2-page Memorandum of Understanding (MOU) that fails to explicitly address any of the questions raised by NAF’s appointment, and which has no enforcement mechanism. (www.icann.org/en/about/agreements/partnership-mous/naf-mou-20feb13-en.pdf). ICANN apparently intends to extend the unjustified practice of accrediting UDRP providers absent contractual compliance mechanisms to the new field of the URS, in contradiction of the community’s unanimous policy recommendation.

In short, while domain registrants remain the primary source of ICANN funding, they are getting continued short shrift from ICANN when it refuses to recognize and address the need for an enforceable means to ensure uniform and effective UDRP (and now URS) administration.

Turning back to the original 2010 ACDR application, the majority of comments received on the ACDR application either opposed it or requested substantial revisions and clarifications. ICA’s comment letter opposed any new accreditations of UDRP providers and also cited material deficiencies in the ACDR application (forum.icann.org/lists/acdr-proposal/msg00005.html). The Summary of the statement filed by the Business Constituency stated “The Business Constituency (BC) cannot support approval of this or any other UDRP accreditation application at this time on the grounds that no new UDRP providers should be accredited until ICANN implements a standard mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities.” (forum.icann.org/lists/acdr-proposal/msg00004.html). And the comment of the IP Constituency (IPC) noted that “any enthusiasm for the ACDR’s proposal must be tempered by the desire to ensure a predictable and equitable system of domain name dispute resolution – as opposed to any profit-driven “race to the bottom” between UDRP providers”, and listed numerous revisions and suggestions that it wished to see made to the ACDR proposal. (forum.icann.org/lists/acdr-proposal/msg00006.html)

The ICANN staff Summary and Analysis of the comments received stated:

The commenters were of varied opinions on the ACDR’s proposal: Three commenters (George Kirikos, the BC and the ICA) were expressly against the ACDR proposal. The IPC noted its conditional approval subject to incorporation of suggested changes, and only one commenter (Alramahi) submitted unqualified support for the ACDR proposal.

It also noted:

Some areas identified by the IPC and ICA include:

(i) Provision of more detail on track record in handling alternative dispute resolution proceedings;

(ii) A more precise statement regarding the case load administrative capacity that the ACDR anticipates handling;

(iii) Better documentation regarding the creation of training materials;

(iv) Revision of specific terms in the supplemental rules to better align with the UDRP process;

(v) Revision to the ACDR’s fee structure; and

(vi) Release of confidential internal operating procedures.

ICANN is providing the ACDR with a copy of this summary and analysis so that the ACDR may determine how to respond and whether it wishes to revise any portion of its proposal. When a revised proposal is received, the proposal will be reviewed to determine if further public comment is advisable prior to presentation to the Board for consideration. Further comment may not be necessary, for example, if the ACDR elects to not alter its fee schedule, as the UDRP allows providers to set their own fees.

Separate from the ACDR proposal, ICANN has been undertaking a process to review its relationships with UDRP providers, and that review is ongoing. (Emphasis added)

We note that while the 2010 staff Summary and Analysis refers to an ongoing review process to review ICANN’s relationships with UDRP providers, we know of no information being provided to the community in regard to the status or results of such a review. If such a review has indeed been undertaken the community should be informed of its status and all relevant information pertaining to it. If such a review process has been halted or remains incomplete then we suggest it be accorded a high priority for near-term completion.

As described above, nearly two and a half years have passed since the ACDR proposal was put out for public comment. The majority of comments opposed approval or requested substantial revision and additional information. We were therefore very surprised when the revised ACDR proposal suddenly appeared on the Board’s Consent Agenda for its Special Meeting of February 28, 2013  with no information presented to the ICANN community as to whether any modifications have been made to the original ACDR proposal, and whether any additional clarifying information has been submitted.

In response to that listing, ICA dispatched a letter to CEO Chehade and Board Chairman Crocker on February 26, 2013 in which we requested that the Board:

  •          Defer action on this matter until at least its next scheduled meeting.
  •          Publish the pending ACDR proposal for community review and comment.

We are aware that similar requests were received from both the BC and IPC. We appreciate the fact that the Board responded to those communications by deferring action on the ACDR application and by having staff put it out for the public comment we are now engaging in.

The Revised Application

Given the fact that ICANN has failed to even initiate a process for developing a standard enforceable mechanism for ensuring uniform UDRP administration among disparate providers, ICA must continue to oppose approval of the ACDR application – or that of any other entity seeking UDRP accreditation.

The principal concern of ICA members, due to the fact that it is complainants who determine both the timing of UDRP filings and the provider with which they file, is that the lack of such a mechanism will inevitably encourage forum shopping as proliferating ranks of UDRP providers seek to gain market share. The means by which such forum shopping can be encouraged – price reductions and concomitant dilution of high quality legal analysis, supplemental rules that unduly favor complainants, and development of a reputation as a complainant-biased forum – would all come at the expense of registrants’ procedural and substantive rights. While the UDRP does permit appeal to courts of relevant jurisdiction that is an expensive fallback as well as one that varies in effectiveness depending on the presence and substance of statute law in different national jurisdictions.

Beyond that basic cause for opposition, the revised ACDR application also contains statements and deficiencies that argue for its rejection.

“Vision”

The ACDR’s revised application of March 1, 2013,  in the application section “Our Vision”, states:

While we put impartiality and professionalism first, we also take into account the necessity for gradual invergance [sic] of the rules applied by UDRP providers. Hence, we acknowledge the importance of constant interaction among the existing providers in order to stay aware of the conflicting policies and to interactively discuss them.(Emphasis added)

While we commend the ACDR for recognizing the necessity of uniformity of the rules applied by UDRP providers and its commitment to “constant interaction” in pursuit of that goal, no UDRP provider has any authority to require another to apply the rules in a consistent manner; rather, it is ICANN that accredits all UDRP providers and therefore ICANN’s responsibility to establish the enforceable mechanism that can best achieve that goal.

Further, elements of this statement are deeply concerning. The UDRP is supposed to be “Uniform” in application regardless of which arbitration forum a complaint is filed in. Yet the statement’s reference to the “necessity for gradual invergance [sic] of the rules applied by UDRP providers” appears to presume that such divergence now exists, is evidenced by  “conflicting policies”, and is acceptable — with uniformity just a distant goal to be reached in gradual steps. We absolutely reject that viewpoint.

Listed Neutrals

The application’s Initial List of Neutrals also raises concerns:

In line with the vision of ACDR, panelists will be invited from different nationalities and with different approaches to IP and other related fields. The selection of the panelists will be according to their experience and knowledge. (emphasis added)

The reference to “different approaches to IP” seems at sharp odds with the overarching need for uniform approaches in UDRP jurisprudence. Also, while many of the initial panelists listed in Annex 1 have impressive credentials, fifteen of the thirty-three listed neutrals have no prior experience in UDRP administration. This raises the issue of how such panelists will be made familiar with existing UDRP practice prior to initiating their own participation in the process, and the application provides no indication of what steps or requirements will be undertaken, or training materials and instruction provided, to assure that these novice panelists receive extensive education in contemporary UDRP practice to assure consistency with prior case law.

There is also no indication of what methods will be utilized to assure that the entire list of panelists is assigned cases on a random and dispersed basis. Indeed, citing the NAF precedent, there is nothing to prevent ACDR from assigning the bulk of its cases to just a few panelists, all of them being those who lack any prior UDRP experience.

Self-Referential Perspective

Several statements in the application give rise to concerns that the ACDR will be focused primarily on its own UDRP practice absent sufficient reference to more authoritative sources such as the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) (http://www.wipo.int/amc/en/domains/search/overview2.0/index.html). Again, this raises the prospect of divergent practices that encourage forum shopping.

For example, in the application’s section on Online Discussion, it states:

The ACDR will establish an online discussion medium, accessible by panelists only, enabling them to communicate with each other and exchange perspectives and experience on all matters relating to the Center’s UDRP process and legal practice of domain dispute resolution.

Any significant legal perspectives or points of critical practice importance which would have the effect of further development in the field will be published on the Center’s website in the form of panelists’ views on UDRP practice.(Emphasis added)

And then, in the section titled Publishing the Decision of the Panelists in the Proceedings, it further states:

ACDR will have its own system/search tool for researching the Center’s decisions resolved under UDRP. The tool will assist complainants, respondents, their counsel, panelists, providers and members of the public who are concerned with the DNS, the UDRP practice, as well as IP protection in general, in researching decisions on domain names. (Emphasis added)

These statements raise concern that, due to the focus on the “Center’s UDRP process and legal practice”, and through development of a search tool focused only on the “Center’s decisions”,  there may arise an ACDR arbitration practice that over time begins to differ in significant ways from that of other UDRP providers.

Instead, ICANN needs to foster the development of tools that provide comprehensive information about UDRP practice among all accredited providers, and that fosters a uniform approach to its application and consistent outcomes in every region of the world.

Caseload projections

The ACDR’s original proposal in 2010 requested that it be allowed to process up to 5,000 cases annually during its initial startup period – a staggering number for an untested provider, about equal to the number of combined annual cases heard by both WIPO and NAF.

The revised proposal has considerable downsized its ambitions, stating: “During the start-up period, the ACDR will be ready to start with a limitation not exceeding 50 per month.” That would still total 600 decisions per year, or more than one-tenth of total UDRP cases at present levels. And, following the start-up period, the ACDR might even decide a greater annual percentage of cases, especially if it adopts an approach to cases and procedural and pricing differences that encourage complainants to favor it.

In sum, the ACDR will, if accredited, likely start out as a significant provider of UDRP dispute resolution and will have the capability to rapidly grow its caseload. These facts again speak to the pressing need for a mechanism to ensure a uniform approach to case administration.

Conclusion

Notwithstanding our comments, the ICA is not fundamentally opposed to the accreditation of additional UDRP providers, and we recognize that ICANN will probably receive additional applications in coming years. This makes it all the more incumbent for ICANN to initiate an approach to establish a standard enforceable mechanism to assure uniform application of the UDRP no matter which arbitration forum is involved. While elements of the ACDR application that cause us concern might well be addressed through explanation or modification, only ICANN has the power to address ICA’s fundamental concern. It is very unfortunate that, more than two and a half years after submission of its original application, we must still oppose ACDR’s revised application due to ICANN’s fundamental neglect of this matter.

We hope that ICANN finds our views useful Thank you for considering them in this important matter affecting the basic rights of domain registrants.

Sincerely,

Philip S. Corwin

Counsel, Internet Commerce Association

This article by Philip S. Corwin from the Internet Commerce Association was sourced with permission from:
internetcommerce.org/ACDR-UDRP_Comment_Letter

Afnic Launches a consultation about a new alternative dispute resolution process

AFNIC logo[news release] Afnic is launching a public consultation about setting up an alternative dispute resolution procedure, in conjunction with WIPO

AFNIC logo[news release] Afnic is launching a public consultation about setting up an alternative dispute resolution procedure, in conjunction with WIPO.

As part of its assignment to provide a dispute resolution system that is accessible and balanced for right holders and holders of domain names, Afnic wants to set up an additional procedure based on the Arbitration and Mediation Center of the World Intellectual Property Organization (WIPO Center).

Afnic already has an internal procedure for dispute resolution called SYRELI. The new procedure, which is designed to provide an additional means of redress for claimants, enabling arbitration decisions to be handed down based on independent experts.

In order to illustrate the progress already made, and to collect your opinions and suggestions concerning the future dispute resolution procedure, Afnic is opening the project to public consultation for 22 days from March 11 to midnight on April 2, 2013. These discussions will allow you to express your opinion on the rules for selecting experts, on how they should exercise their responsibilities and on the rules of conduct applicable to them.

This Afnic news release was sourced from:
www.afnic.fr/en/about-afnic/news/general-news/6758/show/afnic-launches-a-consultation-about-a-new-alternative-dispute-resolution-process.html

EURid Announces Fee Reduction Extended For .EU Dispute Proceedings

EURid logo[news release] The fee for a basic .eu Alternative Dispute Resolution (ADR) procedure will continue to be cut by 50% until the end of 2013, announced the .eu registry EURid and the Czech Arbitration Court (CAC), the institution appointed to rule on .eu domain name proceedings

EURid logo[news release] The fee for a basic .eu Alternative Dispute Resolution (ADR) procedure will continue to be cut by 50% until the end of 2013, announced the .eu registry EURid and the Czech Arbitration Court (CAC), the institution appointed to rule on .eu domain name proceedings.

Since the introduction of the reduced fee in July 2012, the average number of ADR cases filed per month has risen by 80%.

“This increase does seem to indicate that there was some sort of financial barrier that prevented some parties from claiming their rights through .eu ADR proceedings,” commented Czech Arbitration Court Board Member, Petr Hostas.

“Lowering this barrier was a good step that enabled those parties to access the ADR procedure and I sincerely hope that this trend will continue going forward.”

EURid’s General Manager Marc Van Wesemael added, “At EURid, we want anyone with a legitimate prior rights claim to be able to challenge a .eu registration. Making the .eu ADR process more affordable, and therefore accessible, is one way of doing this.”

Why ADR
People can challenge a .eu registration if they believe they have a prior right to the domain name and the current holder has registered the name for speculative or abusive purposes. Although they can do this through a European court, EURid offers the fast and convenient .eu ADR procedure through the independent CAC. No travel is required as all cases are conducted online and by email, and in 21 official EU languages. Cases take an average of four months to resolve.

EURid appointed the CAC in 2005 as its ADR provider. In order to make .eu ADR decisions, the CAC selects one or more panellists from its list of 136 accredited international experts.

In numbers
For the first three quarters of 2012, 35 .eu dispute resolution cases were filed. The Czech Arbitration Court published 25 ADR decisions, of which all were in favour of the complainant.

More information about the new .eu ADR price structure is available at eu.adr.eu.

This EURid news release was sourced from:
www.eurid.eu/en/content/fee-reduction-extended-eu-dispute-proceedings-0

AFNIC Publishes First Score on Syreli, A Monthly Statistics Publication

Afnic, the registry for .FR domain names along with a number of other French territories, has published its first Scope, the first of what they say will be regular publications of statistics on rulings handed down along with other key facts and figures

Afnic, the registry for .FR domain names along with a number of other French territories, has published its first Scope, the first of what they say will be regular publications of statistics on rulings handed down along with other key facts and figures.

The purpose of Scope on Syreli (Syreli is what Afnic is calling their dispute resolution system) is to summarise the procedure’s data and disseminate them as widely as possible. From now on, each month, new statistics and graphics will be posted on the Afnic website, in particular on:

  • the number of rulings handed down
  • the outcome of the procedures (the distribution of rulings, the number of court cases, etc.)
  • the legal status of the claimants and holders (the types of litigation, remedies sought, country of origin of claimants, etc.)
  • the length of time the domain name had existed when the Syreli complaint was filed.

And from November onwards, Scope on Syreli will focus on the key figures for the previous month.

Syreli, the Afnic dispute resolution system, was launched in November 2011 for domain names with the .FR and .RE extensions. As of 6 December, it also applies to the .TF, .YT, .PM and .WF ccTLDs.

The first Scope is published below:

Afnic Syreli Sept 2012 Infograph