During the Public Forum held on Thursday, March 15th by ICANN’s Board of Directors at its just-concluded meeting in San Jose, Costa Rica, ICA Counsel Philip Corwin addressed the Board during the portion of the Forum devoted to an exchange of views on “Implementation issues around new gTLD rollout”.
Corwin raised questions regarding the implementation status of Uniform Rapid Suspension (URS), one of the two new rights protection mechanisms (RPMs) required at all new gTLDs. While the initial implementation details of the other RPM, the Trademark Clearinghouse (TMC), have largely been completed, ICANN has yet to begin the implementation process for URS. ICANN has held out to trademark interests that the cost of filing a URS action for one or more domains owned by the same registrant will be in the range of $300-$500, compared to a base UDRP filing fee of $1300 for a single domain and a single panelist. In reaction, both WIPO and NAF, the two largest providers of UDRP arbitrations, have publicly indicated that they do not intend to apply to provide URS arbitration because that price point is artificially low. Trademark attorneys employed by them charge in excess of $600 per hour, so that even for a domain constituting a ‘slam dunk’ instance of cybersquatting the proposed fee would not even cover one hour of an expert’s time – hardly enough to reach and write a reasoned decision, much less compensate the provider for administrative costs. The only similar domain suspension process currently in use is the Rapid Evaluation Suspension (RES) administered by NAF for the .XXX adult content TLD, for which they charge a base fee of $1300.
During the opening weekend of the San Jose meeting Corwin questioned ICANN staff regarding the implementation plans for URS and was told that a Request for Proposal (RFP) will be issued in about a month. However, ICANN staff had similarly said that URS implementation would kick off the following month at the Dakar, Senegal meeting held in October 2011 -- five months ago.
In his remarks, Corwin also noted that the same trademark interests who recently blocked the GNSO’s initiation of UDRP reform until mid-2014 had abused ICANN’s recent request regarding whether additional new gTLD rights protections were needed at the top level by attempting to reopen critical elements of the URS, a second level protection, that have been repeatedly been rejected by the ICANN community and the Board. These include lowering the complainant’s burden of proof and providing an option to transfer a domain rather than just suspend its use. Adoption of those controversial proposals would convert URS into a cut-rate, rough justice form of UDRP – even though the very same trademark interests originally proposed URS as a limited supplement to and not a substitute for the UDRP.
ICA will review the RFP as soon as it is issued and continue doing everything feasible to assure that the URS as implemented provides adequate due process rights to registrants. We are hopeful that applicants for new gTLDs, as well as ICANN, will resist any attempt to change critical elements of URS standards, as the success of their gTLD bids and the entire program will ultimately depend on attracting sufficient registrants – and any perception that a business or online identity is based on a domain that can be extinguished in an unfair process cannot help but diminish the number of potential registrants.
ICA is also concerned that ICANN staff indicated that they had met with ICANN’s IP Constituency and reiterated their commitment to a URS that is “cheaper and quicker” than UDRP, because an unrealistic adherence to that worrisome standard may cheapen registrant rights.
The non-official transcript of Corwin’s remarks to the Board follows. (Note: he delivered similar remarks to ICANN staff and meeting attendees at a “Rights Protection Update” session held on Wednesday, March 14th) ---
Philip Corwin: “Good afternoon.
Speaking on behalf of the Internet Commerce Association representing domain investors and developers, I would like to address one of the two new rights protections for new gTLDs.
One of course is the trademark clearinghouse and the implementation advisory groups on that are well along.
The other new rights protection, the URS, Uniform Rapid Suspension, nothing has yet been done on that.
At the (ICANN) Dakar meeting, I asked ICANN staff when we could expect to see implementation begin for URS.
I was told in about a month.
Five months later, I asked the question again and was told that an RFP (for a provider to run the URS) will be put out in about a month.
This is disturbing.
We think it’s problematic that the Board has suggested that a credible URS can be done at a very low price point.
The only analogous procedure available right now is the RES available for .XXX domains and that’s administered by National Arbitration Forum and they charge exactly the same as what they charge for a UDRP -- $1300, not $300 to $500.The main difference is in the rapidity of the response.
Finally, in regard to the open comment on defensive registrations, the ICA did not comment on that because the notice was quite clear that the questions were being asked about the top level. But many trademark interests responded with suggestions to change the URS, which is a second-level remedy, and again bringing up suggestions that have been rejected by the Board before to turn the URS into a cut-rate UDRP, particularly with lowering the burden of proof and providing a transfer option.
We would suggest that the time has come to begin implementing URS and not again reopening it and reigniting a divisive debate about what’s in it.
We recognize that trademark interests need a credible process for protecting the legitimate interests, but registrants need a credible process as well that protects their due process rights, and this is critically important to the success of new TLD’s.
That success ultimately is going to be based on registrants adopting them, and if registrants think their rights are not adequately protected, that will discourage registrations.
Thank you very much for your consideration.”
Chairman Steven Crocker: “Thank you. Rod, would you like to work out a response there.”
CEO Rod Beckstrom: “Sure. Thank you, Phil, and I’m going to ask our expert on the executive team, Kurt Pritz, to provide a response.”
Kurt Pritz: “Thank you, Philip.
All good issues and they’ve all been discussed at this meeting. So for example, with the trademark clearinghouse and getting some information to potential applicants on costs — and registries and registrars, we met with and we informed them what we want to get for this program.
We do continue to march along to program plans on URS and UDRP, so you’ll see the RFP for UDRP come out essentially right after this meeting.”
Philip Corwin: “For UDRP?”
Kurt Pritz: “For URS. I’m sorry. Yeah, we’ll reinvent. In a meeting with the IP constituency, we certainly identified the importance to getting to a price target on URS and thank you there will be work with the community on the process and potential providers to make sure we get to that. Because we understand that if the URS isn’t cheaper and quicker than UDRP, then it’s lost its potential effectiveness as a rights protection tool.”