New proposal still doesn’t make sense. But reforming UDRP does.
It’s baaaack!
After being almost shot to death, the so-called “Uniform Rapid Suspension” idea (basically a very fast UDRP for alleged trademark domains) is back.
When URS was originally proposed, it was ridiculed from just about every sector of the domain name world. But a new group was formed to try to salvage it. Originally created by “Implementation Recommendation Team”, it was then refined by “Special Trademark Issues Review Team” (STI). (No word yet on if “Let’s Keep Trying to Put URS into New gTLD Process Instead of the Correct Review Process Team” (LKTPUNPICRPT) will take a look at it yet.)
But in all seriousness, the new proposal (pdf) does include some clauses that should be considered for the traditional UDRP:
ICANN should discourage forum shopping among URS Providers through its URS implementation and contracts. Examiners within a service provider shall be rotated to avoid forum shopping. The URS Service Providers shall avoid “cherry picking†examiners that are likely to rule in a certain way. Service Providers should be required to, and are strongly encouraged to, work with all certified Examiners, with reasonable exceptions (such as language needs, non-performance, or malfeasance) with such reasonable exceptions to be determined as an implementation detail.
Wouldn’t it be nice if UDRP providers were subject to the same guidelines?
Or how about this:
In the event a party is deemed to have filed two (2) abusive complaints, or one (1) “deliberate material falsehood,†that party shall be barred from utilizing the URS for one-year following the date the last of the Complaints was determined to be abusive.
Among the other changes:
-The complaint form will no longer be just check boxes; complainants can add additional information
-Registrant now has 20 days to respond to complaint rather than 14
-If respondent doesn’t respond within 20 days, s(he) can still respond within 2 years and the domain will be reactivated (but still in lock down) pending determination.
-Clear statement that trading names for profit and domain parking is not in and of itself indicative of bad faith under URS
-If complainant wins, it can extend the registration of the domain for one year at current market renewal rates
-No longer an appeal mechanism
The bottom line is URS remains an illogical and messy solution to the trademark problem, and is being shoved through the new gTLD process rather than the appropriate community review. Also, the idea of suspending domain names at $300 each, only to deal with the same issue again when it expires, just doesn’t make sense.
What does make sense is re-evaluating the UDRP, and introducing certain ideas developed during the URS process into the UDRP. That will take time.
It remains ridiculous. And ICANN has 12 comment periods ending between March 28 and April 1st, so people might not have enough time to properly respond.
For example, notice that the top of page 3 lists the circumstances as “non-exclusive” — so complainants can keep piling and expanding the list over time. Paragraphs 5.6 and 5.7, however, limits the respondent defenses to only a specific set of circumstances. That’s clearly unbalanced.
We made substantial and multiple comments to the STI report, see the archive at:
http://forum.icann.org/lists/sti-report-2009/
yet it appears ICANN staff are not doing their job, and incorporating the obvious imbalances that folks like us in the public are finding.
We’ll submit comments again, before the deadline.
BTW, in the “analysis” of STI comments that ICANN published, they said “Several comments raised issues regarding the URS that were extensively evaluated by the GNSO-STI drafting team.”
While this might be true of the comments raised by pro-complainant TM lawyers, who were well represented on the STI, that was *not* the case for domain name registrants. The public comments were received *after* the STI report was published, and thus the STI team did not see or consider the comments of domain name registrants like ourselves. None of the “clarifications” that ICANN staff made (except for searchability of decisions, which both sides wanted) addressed the issues of domain registrants who wanted protections of due process.
While still imperfect (and what policy isn’t?) this version of the URS is a very substantial improvement over the one cooked up by the IRT. It’s been a long hard road to get to this point.
ICA fought against the creation of the IRT and the manner in which it operated as violating ICANN’s own Bylaws. We testified before it and then we testified again at the July 2009 forum on trademark protection in NYC, opposing its version of URS every step of the way. Then we worked closely with members of the STI, especially those representing ALAC and NCUC, to get the improvements in the current version (and, BTW Andrew, one error in your otherwise excellent summary of changes from the original — there now is a de novo appeals process available to registrants). I imagine that we’ll file comments on this version looking toward further improvements — as well as to guard those that are in this version, because the fat lady doesn’t sing until the rules for new gTLDs are locked down with finality.
What still makes no sense is having one set of rights protection rules for new gTLDs and a different set for incumbents like .com. Throughout this process ICA has advocated comprehensive UDRP reform that addresses the legitimate concerns of registrants and complainants regarding the current process. One part of that reform must be placing the UDRP providers under standard contract to ICANN to assure uniformity, provide ICANN with a range of enforcement tools short of deaccreditation, and to limit the ability of providers to abuse their Supplemental Rules authority to encourage complainant forum shopping through outrageous proposals like the “fast track UDRP” that’s been floated by WIPO and CAC.
We’re not where we need to be yet — but policy making is a process, not an event, and at least this one is heading in the right direction.
Philip,
Thanks for your comments and your continued work for the industry.
With regards to the appeal, the redlined version shows the respondent appeal struck out…was it added somewhere else?
You’re very welcome, Andrew.Thank you for the great job you do at DNW.
Yes, Section 6.3 of the revised document now provides registrant with the right to a de novo appeal by filing an answer any time during the life of the registration, so long at it is within two years after the determination issued by the URS provider. This is a stronger right than was provided in the deleted Appeal Section 12, which only allowed an appeal to an ombudsman on very narrow grounds, or by incurring the expense of bringing a civil lawsuit. Establishing such a meaningful right of appeal was one of ICA’s key objectives as the reconsideration of the URS went forward.
Philip, that makes sense now. But it seems the appeal is only if you didn’t respond the first time, correct? So if I respond, and the panel still finds in favor of the complainant, it seems that I can appeal.
You are correct and that should be addressed in comments. As noted, this is a work in progress – but at least it is moving in the right direction.
Phil, wouldn’t it make sense to insert a presumption when reviewing respondent appeals that respondent was either (a) not served properly; or (b) were given very little time to obtain counsel and/or gather the money to properly defend a UDRP proceeding. Your thoughts?