ICANN’s GNSO Council, which sets policy for all gTLDs, engaged in a spirited one hour discussion of UDRP reform during its first day of meetings at the 42nd ICANN gathering in Dakar, Senegal. Resisting ICANN staff recommendations that any initiation of a formal policy review of the UDRP and consideration of appropriate reforms be delayed until at least 18 months after the initiation of the new rights protection mechanisms (RPMs) — such as Uniform Rapid Suspension (USR) and the Trademark Clearinghouse (TMC) – for new gTLDs, a majority of participating GNSO members indicated a consensus belief that a process for reviewing inadequacies in the UDRP and considering reforms needed to be initiated in the near-term.
The Council was formally considering the recently issued Final Report on the Current State of the UDRP (available at http://gnso.icann.org/issues/udrp/udrp-final-issue-report-03oct11-en.pdf ). In that Report, ICANN staff recommended against the initiation of a UDRP Reform PDP (Policy Development Process) at this time based on an assertion that the UDRP has been a largely successful alternative to litigation and that any serious reform process ran the risk of introducing uncertainty and instability. More recently – long after the comment period on the matter had closed – ICANN’s Governmental Advisory Committee (GAC), which has recently taken to echoing the views of trademark interests, weighed in with a similar viewpoint – but GNSO members were advised by ICANN Counsel that this was not official “GAC advice” due the same consideration that ICANN’s Board must accord to such input.
ICA has consistently taken the position that UDRP reform needs to be considered as soon as possible and that the best framework for doing so would be the establishment of a standard contractual agreement between ICANN and all UDRP providers that delineates the boundaries of their powers and provides ICANN with a variety of contractual enforcement tools. ICA members feel that arbitration providers empowered by ICANN to extinguish or transfer domains must be formally bound to assure predictable consistency in UDRP decisions, as well as to prevent a race to the bottom as newly accredited arbitration providers seek to build market share by encouraging complainant forum shopping at the expense of registrant rights.
ICA is also wary of tying UDRP reform to review of new RPMs for several reasons:
- · First, since the first of the new gTLDs won’t be up and running until late 2012 at the earliest, and a decent sample won’t be operational until mid-2013, delaying the initiation of UDRP reform until 18 months after significant use of the URS commences means a delay of reform consideration until 2015, with any resulting report and recommendations off until 2016. That’s simply too long to wait to address registrant UDRP concerns.
- · Second, even procedural UDRP reform is a complex enough subject without mixing in review of new RPMs. In this regard, ICA remains very concerned that credible URS providers will not be available at the $300 per filing price promised by ICANN to trademark owners (NAF and WIPO have already indicated that they don’t plan to apply).
- · Third, tying UDRP reform to RPM evaluation could lead to any needed reforms being held hostage to trademark interest demands that the URS be made applicable to .com and other incumbent gTLDs.
During its discussion, many GNSO Council members questioned ICANN staff assertions that a majority of commenters were opposed to near-term initiation of UDRP reform. They also rejected contentions that a PDP would just be reform for its own sake, pointing out that a wide variety of ICANN constituencies, as well as many third party studies, had identified problematic aspects of the UDRP. They also noted that the mere initiation of a PDP did not predetermine its ultimate outcome, and that any final recommendations would have to be approved by a majority of both “houses” of the GNSO (contracted parties, and non-contractual constituencies) to take effect.
The GNSO Council will discuss this topic again tomorrow in its scheduled meeting with the GAC. Our conversations with multiple Council members during breaks in today’s session indicated a strong consensus that it will vote to initiate a UDRP reform process before the end of 2011. A draft resolution on the matter is likely to be debated during its November telephonic meeting, with a formal vote taking place in December.
Assuming that a UDRP reform process is initiated, ICA will of course be strongly engaged on behalf of its members. Our goal will be to help shape an outcome that provides greater assurance to registrants that their legitimate rights will be adequately respected through an improved process conducted by arbitration providers subject to an enforceable contract.