CAC’s “supplemental rules” change goes into effect today.
Czech Arbitration Court’s new UDRP procedure — in which complainants pay only 500 EUR at first unless the domain owner responds or the arbitrator needs to think about the case — goes into effect today.
As far as I can tell, ICANN has not responded or issued a statement on Czech Arbitration Court’s (CAC) move. I’ll cut ICANN some slack here, given that CAC announced the new scheme just 15 days ago, and didn’t notify anyone publicly other than placing a notice in the news section of its web site. The 15 day window was conveniently timed for when ICANN’s staff packed up and headed to Kenya for its meeting, another gentle slap to ICANN’s face.
I’ve personally reached out to ICANN, as has Internet Commerce Association, to see what ICANN plans to do about this abuse.
Is ICANN in a new era of leadership where it actually has a spine? Or will it just brush this abuse of power under the table? If it doesn’t do anything, expect WIPO and National Arbitration Forum to follow CAC’s lead soon.
CAC is the newest UDRP provider for domain name arbitration. It hasn’t issued a decision since November 30, 2009 when it rejected a complaint against Kevin Ham’s company Vertical Axis over the domain name CityDating.com.
Initially, they will use slam dunk type cases.
Like gooooogle.com, redcros.com .
(hypothetical domains)
The low hanging fruit type cases.
Then, they will move up the scale of difficulty.
In that way, they can present a ‘look how great we are’ presentation to the Int’l Trademark Assn meeting in June and Icann meeting in June.
I was able to use the remote participation capability last Thursday to ask a question about this during the ICANN Board’s Public Forum. The transcript is not yet posted — but the Board asked staff for an update, and the response was the same as that contained in the Summary/Analysis prepared by ICANN Senior Counsel Samantha Eisner — namely, “The CAC announced that in light of the comments received, it was withdrawing its proposal to amend its supplemental rules, and instead would mplement a fee change only. No expedited process is being implemented.”
Of course this is not true. Nothing has really been withdrawn. Even CAC concedes that it is proceeding with “the core” of its proposal, and that will result in a less than fully reasoned and thereby expedited decision that is not consistent with full UDRP requirements. It’s hard to know what’s worse — this ICANN rubber-stamping of the CAC fiction that its proposal has been withdrawn, or press reports that ICANN staff and CAC have held non-transparent discussions of this matter over the past several months. This is a major policy change that is far outside the scope of Supplemental Rules authority, yet ICANN appears willing to let it proceed. This can only raise questions as to whether this is a sop to the trademark interests because they didn’t get their full IRT wish list on new gTLDs.
My best advice to any registrant hit with one of these on the cheap CAC filings is to provide some response even if you can’t afford counsel. As the pricing reverts to that of a full UDRP if there is a response, the best way to protest what has happened here, undermine CAC’s bid to gain market share, and to protect your rights is to assert that you have a legitimate interest in the domain, that it was registered and is being used in good faith, and that it is not identical to or confusingly similar with the complainant’s mark — and that happens to be the best advice in most any UDRP case anyway, as failing to respond just sets up the perception for any future cases that you’re a serial cybersquatter.
” This can only raise questions as to whether this is a sop to the trademark interests”
You use the term “trademark interests” like it is some secret cabal. The “trademark interest group” is any legitimate business and its customers — essentially everyone except Texas International Property Associates, Belgium Domains, etc.
Your “advice” is sheer stupidity. If a registrant gets hit with one of these and they have a legitimate defense, then they should raise it — naturally.
However, lets look at it another way: once a registrant gets hit with a UDRP, win or lose, they are not immune from an ACPA claim. If a domainer follows your dipshit advice and files a response in a clear case of cybersquatting, then they may very well provoke the Complainant to a) withdraw the complaint and file an ACPA claim, b) deal with the complaint anyhow, and then seek damages under the ACPA to compensate them for their elevated legal fees.
If you weren’t so hysterical about this procedure, you would see that a streamlined procedure is good for (legitimate) domainers. Hell, its even good for sleazy typosquatters, because the lower the cost for an arbitration, the less likely that a trademark owner will bother with the ACPA.
Think more than one move ahead before you try and render legal strategy advice to unwitting fools who might listen to you, and thus screw themselves.
So Mark, in your comment posted today at https://domainnamewire.com/2010/03/08/ica-requests-action-on-czech-arbitration-court-policy-changes/#comments you say —
Come on. An “outrage”? Un twist your panties a little bit.If there is a response from the domain holder, the streamlined procedure drops away.
— but when I suggest that registrants should indeed file a response that’s “sheer stupidity”? I have heard many of the best UDRP defense attorneys around opine repeatedly that a registrant should not be non-responsive in a UDRP where they feel they are in the right but the domain has low market value, because that will be cited in a future UDRP as evidence of bad faith.
As for “trademark interests”, I mean the IPC and other entities that operate within ICANN and that pushed for a self-selected IRT process that pumped out the unbalanced policy recommendations that had to be reshaped by the GNSO to be made acceptable.
Finally, as for your other caustic and personally insulting comments, aren’t you capable of engaging in a legal/policy debate without this kind of “hysterical” behavior?
Vertical Axis lost CityDating.com and did not appeal ?
@ FX – Vertical Axis won the case for CityDating.com.
I agree with Marc that a streamlined procedure for no-brainer cases would be a good thing. That’s really not the issue here.
I strongly disagree with Marc that having a private company in competition with other UDRP providers establish one independently and call it the “UDRP” is the right way to get there.
But it is interesting that Marc now considers WIPO to be “hysterical” or an illegitimate business. Consider WIPO’s own comments on CAC’s UDRP “innovations” from the letter from WIPO director Francis Gurry to ICANN, back when ICANN was considering accreditation of CAC in the first instance:
http://www.icann.org/correspondence/gurry-to-twomey-04jul07.pdf
“WIPO is increasingly concerned about the largely unchecked consequences of the generally profit-driven competition in the provision of a consistent, predictable and equitable system of law in domain name cases.”
“Practices of concern… include: …the application of reduced panel fees in respondent default cases; institutional linkages between providers and appointed panelists… and decisions of variable consistency….”
“The CAC Proposal is the latest manifestation of the type of concerns expressed above. It constains numerous instance of proposed violation of the terms of the UDRP in its present form. Underscoring WIPO’s position on the privatization of domain name justice, the Proposal appears to present these very violations as its principal selling points.”
“[T}o the extent that any of these features would be regarded as a platform for changes to the UDRP, we believe that these should not arrive through a ‘back door’ of provider accreditation.”
WIPO has been a frequent and outspoken critic of this notion that UDRP Supplemental Rules should be a vehicle for establishing a process which diverges from the UDRP – whether well-intentioned or not, and has repeatedly followed up on this point:
http://www.wipo.int/amc/en/docs/icann291107.pdf
Saying “it would be a good thing if (x)” and having (x) implemented by a thoroughly unaccountable body are two different things. For example, if a UDRP provider announced it was going to arm its panelists for the purpose of shooting rogue cobras in populated areas, that would certainly be a good and worthwhile thing for them to do. Nobody would be advocating on behalf of the cobras in that situation, but it certainly would raise the question of what gave them the authority to do so.
I find WIPO’s comments on CAC very surprising and damning, given that WIPO has also proposed its own “fast track” UDRP.
@ Marc
1. This is not a domainer issue, it is a registrant issue and there are more than 100 million of them who could be affected by this. It is also an ICANN issue – please see below.
2. It is a fundamental change in the UDRP – which has taken place without due process.
3. ICANN have only one stick to use against the unregulated “Approved UDRP Providers” – remove their acreditation – since they do not have any sort of contract in place with them. This is to me a staggering failure by the body that regulates the internet on behalf of everyone. We are dealing with competing businesses here who are seeking market share from complainants; who are being left to their own devices by the entity charged with a public duty to look after all of our interests.
4. What about all of the cases where no response still wins when the papers are properly reviewed by a panelist? Or the parties who do not see the complaint but to whom time is of the essence if they want to file a submission or appeal to court? This will be a quick and dirty system and those users will be prejudiced.
5. Before you criticise Philip’s concerns about the IP community (however you want to categorise it) take a look at who sits on CAC’s advisory board.
I could go on, but I think that is more than enough to deal with what you had to say.
@ Jim,
I don’t see how this affects any legitimate domain name registrant. If you register a domain name legitimately, then conceivably you won’t have a UDRP filed against you.
Of course, we all know that illegitimate UDRP complaints are filed on at least a monthly basis, if not more often.
In clear cases of cybersquatting, the streamlined process is good for all sides — not just the complainant. As I have explained previously, the less that a mark holder has to invest in a position, the more flexible their position can be. Furthermore, it seems that a complainant would be much more willing to accept a surrender in exchange for a withdrawal of the complaint in this scenario: If they are not getting a full decision anyhow, and they have invested 1/3 the money, why not accept such a deal? In that case, even the illegitimate, bad faith, domain holder wins — because they get to give up the domain(s) without a reported decision against them.
On the other hand, if you have any arguable claim to a domain and someone files a UDRP against you under this procedure, all you need to do is file a reply and a) the Complainant has to file a full complaint, b) the arbitrator has to do a full analysis, and c) the domainer gets their full “day in court” (such as it is under the UDRP).
This domainer-tantrum about this process is something that has been whooped up by the ICA, and the fires are fed by those with a financial axe to grind — meaning the large typosquatting entities and their counsel.
What the rest of you need to understand is that these idiots are acting CONTRARY to your interests, not for them.
@ Berryhill,
John, your argumentation style is ludicrous, and comes across more as the symptoms of someone who is off their medication than someone making a rational point.
If WIPO is against it, I can imagine they would be. It creates lower-cost competition for them and it might chip away at their market share. That is them acting in self-interest, as the ICA does when it raises hell about this. You and the ICA have a vested interest in keeping domainers ignorant and indignant.
As far as CAC having the authority to do this — where in the UDRP does it set a minimum price that providers can charge? Nowhere.
Where does it say that the decision must be a lengthy screed? Nowhere.
The fact is, the CAC’s new policy fits in the framework of the UDRP. Everyone should just un-twist their panties now and stop trying to scare the crap out of the domainer community with this foolishness.
WIPO’s market share?
Marc, WIPO publishes its budget.
http://www.wipo.int/export/sites/www/about-wipo/en/budget/pdf/budget_2010_2011.pdf
Please refer to budgeted 2010/11 WIPO expenses in connection with:
The Patent Cooperation Treaty Program –
SF 183.7 million
The Madrid and Hague TM Programs –
SF 58.5 million
“Arbitration, Mediation and Domain Names” –
SF 10.2 million
That last budget figure includes all Med/Arb services, of which domain name disputes are a minor component.
Figure that they can reliably count on around 1900 UDRP’s a year, of which three member panels are rare – at $1500 per. Out of that $1500, WIPO only collects $500 and the panelist gets $1000. So WIPO is collecting slightly more than US $950,000 in UDRP fees annually.
Now, consider the PCT program. The base PCT application filing fee is SF 1300 (US $1330). In 2009, there were 155,900 PCT applications filed (http://www.wipo.int/pct/en/newslett/2010/02/article_0001.html). That comes to just a notch over US $207 million in fees.
So, leaving out the Hague and Madrid TM stuff, you really believe that Dr. Gurry is knocking himself out over a program that collects $950,000 in fees, and employs a dozen or so case managers and two layers of supervisory staff; while on the patent side WIPO is collecting more than two hundred times that amount?
I would be willing to bet that the WIPO domain dispute program operates at a loss on these figures. Given that the net expense figure of the UDRP is folded into the 10.2 million Arb/Med budget, the UDRP fees do not come close to meeting a substantial part of the Arbitration and Mediation Centre budget by a factor of 10.
WIPO has no use for a “profit” in the first place, since it is a UN treaty organization.
Now, who owns CAC and NAF? (The CAC is not a Czech government entity, nor is it a court)
Do you know?
Wow… so you mean that WIPO is not an evil organization that conspires to beat up on domainers? That’s great news coming from you.
And I am aware that CAC, NAC, and ADNRC (or whatever it is called) are all private entities that operate for profit. What’s your point?
To the substance: Where in the UDRP does it mandate a certain fee, or that the decision must be lengthy?
“Wow… so you mean that WIPO is not an evil organization that conspires to beat up on domainers? That’s great news coming from you.”
I have no idea why you must personalize everything, but it is not news. I do not agree with everything WIPO does, but there do seem to be people and organizations who can manage to disagree and discuss subjects without “dipshit”, “ludicrous” and “off your medication”. Sometimes such people actually manage to get together and hold a civilized conversation:
http://www.wipo.int/amc/en/events/workshops/2009/10yrs-udrp/program/index.html
“And I am aware that CAC, NAC, and ADNRC (or whatever it is called) are all private entities that operate for profit. What’s your point?”
The point was in response to your statement that WIPO’s criticism of CAC proposed supplemental rules was driven by some sort of “market share” consideration which, given the published WIPO budget and the actual numbers discussed above, is absurd.
If you want to step into the hyperbole ring, don’t start whining like a pissed off sorority girl when you get hyperbole tossed right back at you.
What a fine example you set… when you are losing an argument, you cry about how the other guy argues – even when your own playbook has the same plays therein.
I think the conversation was pretty reasonable, and then you started talking about cobras or some other zany foolishness.
And again, I ask… where in the UDRP does it say that CAC can’t a) charge less, and b) provide shorter opinions? That’s what this is all about, that is where this all started. The shrill whining that this was an “outrage,” that CAC had somehow pulled some huge stunt.
If CAC is willing to handle cases on these terms, I’m just not able to find what part of the UDRP this conflicts with. And, I’d love to hear more than simply whining about it.
@ Marc
I am guessing you have not handled many domain name cases for people being challenged for valuable generics. And I suppose your (non corporate) clients never go on holiday or fail to amend their WHOIS contact details or don’t grasp the importance of a UDRP/DRS until it is too late?
Yuor point about whether or not a fast track UDRP is a good thing or not is one you could make in a debate about this sort of thing, if we had the chance to decide this by following due process. I would counter it by saying that the UDRP is already a very fast track system by normal standards. For every ten “clear cut” cases, would you sacrifice the one legitimate non-responder who gets swept away with the flood.
But really it does not matter what anyone thinks, since the decision has been made by CAC (for commercial, not jurisprudential reasons), with collusion from ICANN.
As for the questions you ask @ John why it is not allowed under the rules, it is all in there in the UDRP Rules. Take a look and see what it says about the scope of supplemental rules, fees, reasoned decisions and the process for changing the policy.
BTW, it is not the scale of the fee that is the relevant question, but rather where in the rules does it allow a split intial fee? A single initial fee is required before the complaint can be handled by the provider and sent to the registrant – split initial fees are not allowed under the UDRP rules.
Ultimately it all goes the need for a unified system controlled by ICANN and the internet community as a whole – U is for Uniform.
I’ve handled my share of disputes over domains where the domain owner was unjustly challenged. I can’t see how this would make it any more difficult to defend. However, in the many cases where I brokered a domain sale in exchange for withdrawal of the complaint, I can say that this procedure would have benefitted my clients – as the investment that the other side made in the action would have been less — thus their budget for settlement funds would have been more.
Failing to amend Whois information, no I have not represented a client for whom that was an issue. Nor have I represented someone who didn’t grasp what a UDRP meant until it was too late. Well, once I did the latter – and the other side graciously gave us an extension.
I do not hold much sympathy for those who are “swept away with the flood.” As you identified, those will be two classes of Respondents on the down side of this — those who fail to keep accurate Whois information (you break the rules at your peril) and those who fail to see the importance of a complaint filed against them until it is too late (at some point, natural selection should be respected, no?).
Therefore, my answer to your question is yes. I would sacrifice the one “legitimate” non-responder for the 10 cases that are more properly resolved in a cheaper and quicker method.
As far as your interpretation of the rules goes — I just don’t see the rules prohibiting this. You say “it is all in there,” but the text of the UDRP does not support your interpretation.
Para 15 provides that the decisions may be in a length provided for in the provider’s supplemental rules.
Para 19 governs fees, and provides that “The Complainant shall pay to the Provider an initial fixed fee, in accordance with the Provider’s Supplemental Rules, within the time and in the amount required.” But, it also provides that the provider can request additional fees in “exceptional circumstances.”
Naturally, nobody has defined “exceptional circumstances,” but I don’t see this interpretation of the rules as being inconsistent with their plain language.
I’m all for due process, but I think that this CAC supplemental rule change is A) entirely consistent with the framework given to them by the UDRP, and B) a good idea for all except a couple dozen of the most egregious cybersquatters — and frankly, even those could benefit from it if they had good, intelligent, and creative minded counsel who could use this new procedure not only in a way that it wouldn’t harm them – but potentially to their advantage.
@ Marc
We obvioulsy disagree fundamentally on the importance of protecting legitimate registrants. I do not think that any lobby group – domainers, IP rights lobby, UDRP providers or whoever – is more important than them.
Remember also that the UDRP is meant only for the most blatant cybersquatting cases that you refer to. It is lightening quick and cheap by any judicial measure and provides a more than adequate quick and cheap system to protect rights holders in such cases. Any case that involves a serious argument ought to be rejected and the parties left with court as the appropriate forum.
Para 19 requires the intial fee to be paid upfront. It does not allow for a routine second part of the intial fee. You seek to shoehorn this into subpara (d) as an exceptional circumstance. The example given in the rule is for an in-person hearing (which as far as I know has never happened) – so to say that this “new procedure” (your words) equates to an exceptional circumstance is obvious nonsense.
As you say, this is a “new procedure” and we differ on our view whether the outcome is desirable. That is fine. Your attempts to justify the means is embarassing. Be honest and say you think the ends justify the means, even when the means plainly breach the requirements of due process.
It does not make it more difficult to raise a legitimate defence, but it does (a) make it cheaper to make an illigitimate claim (or use the claim to UDRP “taste”) and (b) make it considerably more likely that an unanswered claim might prevail where previously it would have failed, when given proper scrutiny.
Yes, we do disagree on that. I think that if we *had to* balance the interests, I do not hold domain owners up as more important than ethical and free trade. But, I can respect your position as being simply one of differing values.
However, I don’t see that any legitimate registrants could possibly be harmed by this. *Legitimate* registrants are those who stay far from others’ IP rights and who update their Whois information. Seems kind of easy to do.
Also, I disagree with your view on what the UDRP is for. You seem to be quoting David Sorkin there, and if you want to talk about someone with a profit motive to make bad decisions, he’s the poster child for that kind of thing. Don’t get sucked into his kool aid bin, as it isn’t based on legitimate theory, it is based on getting a steady flow of $750 checks from Ari Goldberger to supplement his professorial income.
I don’t see my interpretation of Paragraph 19 as the ends justifying the means. Paragraph 19 provides an example, but it is not a limiting example — but merely that — an *example*.
Here’s the problem, I think. You regard domain owners as some kind of exalted class. Fair enough. Anything that could possibly mean that they might be burdened by, I dunno, responding to a complaint, seems overly burdensome. I can live with that.
But get a grip, Jim. It isn’t going to make it that there is a flood of UDRP complaints. Hell, you can file a federal court action against any .com in US Court, and all you need is a $300 filing fee.
Again, I think that the entire alarmist camp here needs to untwist their panties. The world didn’t grind to a halt when NAF implemented its “Supplemental filing fee” rule, and the sky isn’t going to fall here.
And watch your manners with assigning my intentions. You started reasonably enough, but you’re getting a little Berryhill with that. I don’t give a sweet turd if CAC implements this plan effectively or not. I prefer to bring complaints with WIPO, and frankly, I prefer to defend them before WIPO. I’ve found CAC to be problematic for other reasons, but I haven’t found them to be ethics based.
The fact is, you’re trying to find limitations in the UDRP to fit your view, and the textual limitations just are not there. You’d be better off being more objective about it. Well, maybe not, since the domainer community prefers attorneys who flip their wig and scream “injustice” any time their definition of “Generic” gets put down, but that’s beside the point… or is it? Do your marketing, it will serve you well, but nobody’s due process rights or property rights are threatened here — except for maybe a few of the larger typosquatter companies. If those companies pay your mortgage, then rail away, but it smells of desperation.
@ Marc
The UDRP was implement to provied an “administrative resolution for only a small, special class of disputes. Except in cases involving “abusive registrations” made with bad-faith intent to profit commercially from others’ trademarks (e.g., cybersquatting and cyberpiracy), the adopted policy leaves the resolution of disputes to the courts…” Taken from the Second [ICANN] Staff Report – found here:
http://www.icann.org/en/udrp/udrp-second-staff-report-24oct99.htm
That is what it is for. Likewise exceptional circumstances do not cover what will become the standard filing practice under CAC.
And the NAF Supplemental Filing Fee should never have been allowed – it is the start of the slippery slope.
Domain registrants are just people and businesses. As such, they are entitled to their rights being protected. Complainants are too – but if their dispute does not fit into the intended limits of the UDRP, then they have the right to go to court – just as everyone does for any other sort of dispute. Likewise they should not be afforded the advantage of a speeded up, dumbed down UDRP, unless the entire internet community agrees that is the correct way forward.
I can assure you that the summary DRS in the UK did result in more complaints being filed – and often withdrawn when met with a substantive response. I am certain that it will happen in the UDRP.
I am sorry you cannot see all of that, but there we go.