Following up on its November 30th letter to Chairman Thrush and President Beckstrom, on December 11th the ICA filed a formal comment requesting that ICANN block the CAC’s blatant attempt to encourage forum shopping and reverse domain hijacking by enticing complainants with a faster and cheaper UDRP that gives short shrift to registrant rights.
ICA’s statement can be found at http://forum.icann.org/lists/cac-prop-supp-rules/msg00014.html and is reproduced below. We encourage all those with an interest in proper functioning of the UDRP to review all of the statements filed at http://forum.icann.org/lists/cac-prop-supp-rules/ ,as many are excellent – and they are unanimous in their opposition to the CAC proposal.
The ball is now in ICANN’s court, which clearly should inform CAC that such momentous UDRP changes can only come about through a formal policy development process (PDP) followed by Board approval.
But at least the CAC has conceded that its plans cannot proceed without some form of ICANN approval – as opposed to WIPO, which has stated that it plans a similar move (details still under wraps) and has so far made no concession to ICANN’s authority.
We knew all along that the trademark interests intended the URS at new gTLDs to be a stalking horse for similar expedited UDRP procedures for existing gTLDs, including .com. But we didn’t expect them to jump the gun and try to implement such major alterations through individual UDRP provider amendment of Supplemental Rules meant for administrative matters — especially after ICANN’s Board decided that the URS was a major policy change and not a mere implementation detail.
Goal #1 for ICA is to block the CAC and WIPO initiatives. Goal #2 is to get ICANN to convene a PDP on UDRP reform – and then fight for balanced changes that address complainant abuses, restore uniformity, assure impartiality, and place UDRP providers under tight contractual restraints. That won’t be easy, but it is clearly necessary.
ICA’s formal comments were as follows—
The Internet Commerce Association (ICA) is strongly opposed to the proposed implementation of an Expedited Decision Case (EDC) variant of the Uniform Domain Name Dispute Resolution Policy (UDRP) by the Czech Arbitration Court (CAC) through amendment of its Supplemental Rules.
We believe that the proposal is a significant and major policy change that can only be effected through a formal Policy Development Process (PDP) convened under auspices of the Generic Names Supporting Organization (GNSO), and subsequent approval of any recommended policy changes by majority vote of the ICANN Board. Implementation of this proposal through CAC’s Supplemental Rules would constitute a complete perversion of individual arbitration provider authority to amend secondary rules that are solely meant to address minor and incidental administrative matters.
The ICA first brought our concerns about this proposal, and a related pending proposal emanating from the World Intellectual Property Organization (WIPO), to ICANN’s attention in a November 30th letter to Board Chairman Thrush and President & CEO Beckstrom. That letter can be found at http://www.icann.org/correspondence/corwin-to-beckstrom-dengate-thrush-30nov09-en.pdf .
To reiterate, the position of the ICA is that:
• ICANN should notify the CAC, WIPO, and all other accredited UDRP providers that they lack any authority to implement expedited UDRP variants or other major UDRP policy initiatives through unilateral amendment of their Supplemental Rules.
• ICANN should also advise these UDRP providers that they risk revocation of their accreditation if they persist in proceeding in this manner.
• ICANN should advise all accredited registrars that they are not to be bound by or enforce any decision reached under any expedited UDRP variant that may be unilaterally implemented by a rogue UDRP provider, as any such decision would not be rendered under the uniform dispute policy that registrants contractually agree to be bound by when they enter into a business relationship with a registrar.
• The GNSO should give strong consideration to convening a PDP on UDRP reform as such a process could result in balanced changes in the UDRP that address the legitimate concerns of both complainants and registrants; with such reforms being implemented in a uniform manner, rather than through unilateral modifications by individual providers that will inevitably undermine uniformity, encourage forum shopping, and dilute registrant rights and protections.
• In addition to reforms of the UDRP itself, it should be a goal of such a PDP to establish a standard contractual relationship between ICANN and all accredited UDRP providers to better assure uniform application of the UDRP, delineate clear boundaries for the limits of provider authority including the ability to implement changes through Supplemental Rules, and provide ICANN with a range of enforcement tools in addition to the blunt instrument of accreditation withdrawal.
Thank you for your consideration of our views.
Sincerely,
Philip S. Corwin
Counsel, Internet Commerce Association