On Monday, March 14th the ICANN Board held a public forum to discuss issues identified by the Governmental Advisory Committee (GAC) in regard to new gTLDs (full transcript available at http://svsf40.icann.org/node/22097). Following their recent meeting in Brussels, the GAC sent a communiqué to the Board (available at http://gac.icann.org/press-release/gac-brussels-intersessional-meeting-communique-2011) and the Board released a detailed response (see http://icann.org/en/correspondence/dengate-thrush-to-dryden-05mar11-en.pdf ) to the GAC indicating whether each of its 80-plus proposals was acceptable (1A), acceptable in principle but requiring additional work (1B), or unacceptable/unworkable (2).
While the Board has generally held the line and rejected GAC proposals to radically alter the new Uniform Rapid Suspension (URS) mechanism – such as eliminating the “bad faith” requirement, lowering the complainant’s burden of proof, or adopting a “user pays” regime – it made a fundamental concession in Brussels by agreeing to the GAC proposal that a complainant be given first option to acquire a domain that has been suspended through a URS proceeding at the end of that suspension period. This introduction of a domain transfer possibility radically alters the nature of the URS and opens up the possibility is significant abuse via domain hijackings. ICA immediately sent a letter to ICANN (see https://www.internetcommerce.org/ICA_Suggests_Better_Alternative_to_URS_Domain_Transfer) raising strenuous objections to that position — and suggesting an alternative that would address brand owner concerns without subjecting new gTLD registrants to potential URS hijackings.
ICA Counsel Philip Corwin addressed the Board on Monday afternoon to vocalize the concerns of ICA members and propose the ICA alternative. His remarks, edited to correct the raw transcript, follow—
PHILIP CORWIN: Good afternoon, Philip Corwin speaking on behalf of the Internet Commerce Association. I appreciate this opportunity and want to commend the Board and the GAC for engaging in the exercise they’ve joined in — and the Board for acquiescing to GAC positions where that is warranted, and for defending the consensus positions that resulted from the multi-stakeholder process where that is warranted. And observing that in particular, the trademark positions reached by the STI-RT and unanimously adopted by the GNSO, in our opinion, represent, quote, "true consensus," unquote.
Now, on the URS, we believe that a mistake was made in Brussels in assigning a 1A to item 6.2.12, which is the possibility of domain transfer through a URS. As it was noted, the URS was always proposed as coincident to and not convergent with the UDRP. I doubt whether the URS could have been adopted with a transfer option. And certainly, had that been on the table, there would have been extensive discussion of how to prevent and sanction the possibility of domain hijackings through an action which, it appears, is going to be a $200 filing fee with no substantive evaluation. So we are not asking for reversal. We are proposing what we believe is a more constructive alternative that meets the concerns of brand owners. And I have spent — I spent all weekend speaking with members of the IPC and other very strong proponents of I.P. rights. And the general feedback I got on this suggestion was that it was acceptable to all. And for many they saw it as preferable. And that is simply that when a domain at a particular new TLD loses a URS action, it’s placed on a list where it’s permanently ineligible for re-registration.
And we believe that this is not just a win-win, but a quadruple win.
It’s a win for brand owners. They take slam dunk infringing names and get them removed from the DNS without any continuing costs of paying to keep them in their own portfolios to keep them out of the hands of bad actors.
It’s a win for registrants who don’t have to worry about the URS being a vehicle for domain hijacking.
It’s a win for the applicants for new TLDs, because, frankly, a lot of knowledgeable registrants will avoid new TLDs once they understand that a domain hijacking can be accomplished through a URS.
And it’s a win for the ICANN policy process going forward, because it doesn’t introduce a tremendously disruptive element into the just-initiated process of UDRP reform.
So we’re trying to be very constructive here, and we hope that the Board and the GAC will take our suggestion under advisement. And we thank you for this opportunity.
>>PETER DENGATE THRUSH: Philip, just a quick question. And the suggestion has been made by others that we change the URS into a transfer. There’s only transfer in one very limited circumstance, and it’s when the person who wins does nothing, and it goes on and on and on and sits there and eventually goes into – goes back into the pool.
So we’ll have another look at that. But there’s — there is actually only very limited circumstances where the URS results in transfer. And it’s only when nobody’s done anything for years. And it’s designed to prevent it going back into the pool, some other cybersquatter picking it up and the brand owner having to run another URS.
Whereas your proposal is, to me, as soon as somebody wins a URS, it becomes completely banned from the DNS forever, looks like a wonderful ground for gaming. So I’m not sure that we — that we’re talking — whether you understand our — our — whether you understand our remedy and whether you’re not just creating another problem.
>>PHILIP CORWIN: We’re not trying to create another problem. And we’re not wed to our suggestion. But we are very concerned about the possibility of domain transfers through URS, which was never, ever on the table until two weeks ago in Brussels. And, frankly, we don’t know how the URS is going to operate in practice. And we’re going to have to need a few years’ experience, because there’s always a big gap between theory and practice.
But thank you.
>>PETER DENGATE THRUSH: Thank you.