The Internet Commerce Association (the ICA) has just released its statement regarding the Uniform Rapid Suspension (URS) proposal of the trademark group making up the IRT committee of ICANN.
Yesterday we published a post, discussing the IRT committee and their proposals to increase protection for trademark holders in the domain world and make effect that would have on all domain holders, the most troubling of which is the URS.
Today the ICA released the following statement outlining their position on this proposal and its ramifications on domain holders, including its plans to fight the proposal.
I urge all of you to take a few minutes to read yesterday’s post on this issue and the following statement by Phil Corwin of the ICA:
“”””The Implementation Recommendation Team (IRT) created by ICANN’s Board to allow its Intellectual Property Constituency to propose “solutions” for whatever trademark threat they believe is posed by new gTLDs has issued its final report .
This proposal is now open to public comment until June 29th.
Perhaps in preparation for the upcoming ICANN meeting in Sydney, where the seasons are reversed from the Northern Hemisphere perspective, the IRT has created a trademark owners’ wish list and asked ICANN to play Santa Claus. The ICA will be in Sydney to point out that while Winter may start in Australia on June 21st Christmas is still half a year away — and that Scrooge might be a preferable role model in regard to many of its recommendations
This is not to say that we discount the many concerns being triggered by the new gTLD proposal, as we have quite a number ourselves — or that we are opposed to effective means for trademark owners to safeguard their existing legal rights in the DNS. But the IRT process has been gravely flawed from inception, and many of its recommendations would have ICANN weave new rights out of whole cloth and leave legitimate registrants’ investments at an unfair and permanent disadvantage against future trademark objections.
In regard to the IRT’s procedures, as previously noted we filed a detailed complaint with ICANN Ombudsman Frank Fowlie on April 21st laying out our case that the IRT was an ICANN “constituent body” operating in violation of the Bylaws requirements for fairness and transparency, and that it should therefore be required to come into compliance or be denied further staff and financial support from ICANN. Mr. Fowlie has been polite in his subsequent communications to us but has yet to issue formal findings in response to our allegations, bringing to mind the adage that, “Justice delayed is justice denied.” It’s too late to deprive the IRT of their ICANN support, but it’s not too late for a forthright declaration that they broke the rules when they decided to operate behind closed doors.
As discussed below, the largest concern raised by the Report is the proposed Uniform Rapid Suspension (URS) system, which would largely displace the flawed yet familiar UDRP. The IRT process is best understood as ICANN-sanctioned UDRP reform with complainants in charge and registrants largely excluded. That this is one-sided and inherently unfair process is obvious. Domainers have their own issues with the UDRP, chief among them its growing lack of uniformity and predictability. So by all means let’s undertake UDRP reform, but let’s do so in a balanced and transparent manner with all parties around the table.
While ICA has yet to digest every word and footnote of the 69 page final Report, we plan to do so and to file a comprehensive response by the deadline. Overall, it seems little changed from the interim Report we previously criticized, with the major additions being buttressed justifications for its proposals.
Domainers need to understand that this is a process, not an event, that we are a long way from the finish line and that there is no reason to throw in the towel. What is needed is for concerned parties to weigh in with ICANN by filing strong written comments and, if in the neighborhood, by stopping by and speaking out in Sydney. In addition, ICANN has announced that it will hold public sessions on the overarching issues relating to new gTLDs, particularly trademark protection and the potential for abusive conduct. These sessions will be held in:
New York City – July 13
London – July 15
Hong Kong – between July 20 & 24
Abu-Dhabi – between August 2 & 6
The trademark community is already gearing up to turn out for these meetings en masse and domainers need to make a similar commitment to participation in this unfolding process.
The proposed URS is probably the greatest threat faced by domain investors since ICANN’s inception. If adopted, it would constitute a substantial erosion of the substantive and procedural protections for domain portfolios. Once put in place it’s likely just a matter of time — and we’re talking a few years, not decades — before it would be instituted for .com and the other incumbent gTLDs.
One major change from the interim report is that a URS complaint would have to allege bad faith registration AND use, whereas the interim report would have only required one OR the other (which would have made it possible to suspend a domain that had never been used!). While this is a sounder approach its ironic effect is to render the 3-part URS standard essentially identical to that of the UDRP, making it crystal clear that it would largely displace it. (There is one substantive difference, a requirement that the domain be identical or confusingly similar to a valid trademark registration in a credible jurisdiction, but few UDRP complaints involve unregistered marks so this is largely a distinction without a difference). The IRT contends that a successful URS complaint “requires a much higher burden of proof” in that its elements must be satisfied by clear and convincing evidence that there is no genuine contestable issue rather than the UDRP standard of preponderance of the evidence. But the line between those standards is hazy and open to argument even among lawyers. More importantly, the URS examiner may be asked to make a determination as to which side of the line a given domain falls on for as little as $1.50 per disputed domain name, which does not pay for a whole lot of considered deliberation. The IRT would counter that most URS complaints will only involve 1 or 2 domains held by a single registrant, bringing the fee per name down to only $100-200 – but those figures are still respectively one-fortieth and one-twentieth the total average cost of bringing a UDRP complaint, so the URS will make it far less expensive for trademark owners and their attorneys to launch complaints totaling many multiples of current UDRP filing levels. And the registrant accused of abuse will have a scant 14 days to prepare a detailed response as to each and every domain implicated by these cluster bomb filings.
The URS would be worrisome enough if it applied solely to domains that were identical to registered trademarks, but as there is no objective standard for what constitutes “confusingly similar” underpaid examiners will be asked to make near-instantaneous determinations regarding domains that may well be many degrees of separation away from the mark in question. Even WIPO conceded, in regard to its similar Expedited Suspension Mechanism (ESM) proposal, that an examiner would be hard pressed to determine a confusingly similar claim in a process that is supposed to be so rapid that it’s nearly automated.
The URS also fails the “Monster test” that we previously articulated, in that it does not provide for effective sanctions against abuse by a trademark owner. Under the IRT proposal such abuse would have to occur on three separate occasions before the transgressor would face any penalty, and that would consist of a mere slap on the wrist in the form of barring further URS filings for a single year – no requirement to reimburse the lost income of the registrant harmed by the improper suspension of his domains, no punitive damages at all, and the abuser still left free to file UDRPs and court actions during their one year time out from URS eligibility. The combination of extremely low filing fees and no effective sanctions is an open invitation to aggressive use and outright abuse, and constitutes the most glaring illustration of this proposal’s one-sided nature.
As for an aggrieved registrant believing his domains to have been improperly suspended, the IRT proposes that, deprived of income, he should seek redress under the UDRP or in court. But there is no “reverse UDRP” that permits a registrant filing for reinstatement of a suspended domain, nor is it clear what national laws would provide potential relief. But wait, the IRT would also allow a request to a URS ombudsman to find that the original decision was arbitrary and capricious or an abuse of discretion. That option depends on the employee of the examination authority finding that an agent of the same entity committed major error or worse. How likely is that?
There are other major provisions of the IRT proposal that concern us, including those for an IP Clearinghouse and a Globally Protected Marks List. While we are still examining their details it appears that their preemptive nature goes well beyond existing trademark protections in statutory law. Granting such new rights would effectively turn ICANN into a legislature for the DNS. It may seem attractive at the moment for trademark owners to urge such action by ICANN, but we predict that they will eventually rue the day that ICANN decides that national laws and international treaties do not define the limits of rights in the DNS but are merely a jumping off point for fashioning new rights.
While the IRT members accorded the ICA a polite and respectful reception during our presentation at their final San Francisco meeting we harbored no illusions that they would retreat from the URS and adopt our suggestion for a broader, fairer, and more inclusive UDRP reform effort. Given the short time the ICANN Board provided for them to develop their “solutions”, and the possibility of erosion as the process moves into the broader ICANN community, it was predictable that they would produce a maximalist wish list.
As the trademark community has opposed new gTLDs from the start, perhaps they were even more Machiavellian in their thinking – deliberately overreaching so that when their package of proposals was rejected in whole or part they would have a stronger basis for blocking the entire project. But this is probably wishful thinking, as we are now seeing press reports that the trademark community is concluding that new gTLDs are inevitable (as well as getting oral feedback that in many instances large corporate marketing divisions are now thinking they may be quite desirable), so they are gearing up for Sydney and the regional sessions to press for full adoption of the IRT recommendations
Again, these IRT proposals are just recommendations, not final policy rules for new gTLDs. But ICANN is anxious to overcome trademark sector concerns so that it can begin to accept new gTLD applications in the first quarter of 2010. So these IRT proposals must be taken very seriously and addressed on their own demerits. The stakes for domainers are simply too high to do otherwise.””””
That concludes the ICA statement.
Once again we ask all those who claim to be domainers, or in the domain business in any capacity to join the ICA.
Some suggest they would if the due’s were $20 a year.
Guys do you see the schedule of meetings just over the next couple of months?
How can we afford to have representation at meeting basically all around the globe on $20.
Hell one back order at namejet.com or snapnames.com is $69.
This is no longer a question of whether you should join the ICA it’s a necessity.
However, things are even worse than let on. The ICA statement said:
“Again, these IRT proposals are just recommendations, not final policy rules for new gTLDs.”
Notice the use of the words “policy rules.” However, there was a teleconference yesterday for the registration abuse policies working group, where this issue of “policy” creation and how it should be done came up.
http://audio.icann.org/gnso/gnso-rap-20090601.mp3
Jump to 27:10 (27 minutes and 10 seconds in) of the MP3 recording and listen to the next 2 minutes where I ask Margie Milam of ICANN a question about policy vs. implementation. At 27:24 or so she says the ICANN Bylaws say it has to go through the GNSO. But, at 28:05 or so she says “The IRT work is *implementation work.*” !!! She dances around the issue for the next 40 seconds.
*Policies* need to go through the GNSO. However, ICANN Staff are describing all the new gTLD stuff as *implementation*, even though they are definitely creating new policy. Furthermore, take a look at the IRT’s full name “Implementation Recommendation Team.” Once again, this is doublespeak by ICANN, a way to circumvent proper procedures. These recommendations *are policy* and should be going through the GNSO. That would have resulted in balanced work, instead of the abomination and extreme report we received.
So, be watchful, as ICANN staff are mischaracterizing and callings things only “implementation” in order to be able to do as much as possible in terms of policy creation in an unaccountable manner.
I think Phil Corwin does an excellent job assessing and responding to proposed changes in domain regulation. ICA is certainly worthy of support.
Question, to put the situation in perspective for me and everyone else. Regarding these sessions coming up in Sydney, New York, Abu-Dhabi and so on….
If anyone knows the answer to the question first hand or however, about how many people attend representing the trademark community (on average) and then how many attend representing the domain/domainer community? Numbers wise & percentage wise?
I’m scared to hear the answer.
jp,
Considering Mike’s last 2 posts on the ICA (at this moment in time) have had a whopping total of 19 clicks per the domaining.com count vs. 45 for LLLL.com’s “Are you that Fucking Stupid” post and 35 for people wondering (who cares) “Why Elliot enjoys conferences” I’m going to bet the domain community has little representation if any.
It it wasn’t for Mike, Phil Corwin, ICA and other these issues would never be challenged and probably never mentioned. We have not joined the ICA but probably will later this month.
As a community we suck in supporting the ICA but to be honest – they suck in communicating to domain owners. I learn more about what the ICA does here at Mike’s blog and he’s doing this while sipping Pina Coladas in his underwear.
We also suck in coming together to raise funds. Sure, some don’t want to give money away for nothing, others just think an angel will never let anything bad happen and others just keep going back and forth on why/why not to support the ICA (myself included).
Sahar has run auctions, Aftermarket has run auctions for ICA funds but “correct me if I am wrong” its basically been an auction for one name.
I think the real responsible thing would be for someone (possibly Moniker/SnapNames) to have a special featured live auction with 100-200 names with ALL proceeds going to the ICA. I have no problem donating some good names and I’m sure others would too. When raising money is fun – it usually works for all plus then maybe the ICA could actually hire someone so Mike doesn’t have to do all the work explaining to us what they do 🙂
As I said in a previous post, I don’t believe that ICA represents the average domainer’s interests. If they did, they would be lobbying ICANN to end Registrar warehousing of expired domains.
This is something that affects every domainer who pays money for drops, and there aren’t many who aren’t based on the success of SnapNames, Pool, NameJet…etc.
So where is ICA on this? Dead silent.
But reading Mike’s passionate posts, and fully believing his dire predictions on what will happen if the trademark lobby gets their way, I think to myself, “maybe I should join ICA and try to work from within to push them to lobby against the egregious warehousing going on.”
So, I went to the ICA site, to look at a membership for $295, and guess what?
For your $295, you get a NON-VOTING membership. So, if you actually want to have a chance to vote for board members, it’ll cost you $1000. Or, if you’re really flush, you can just buy a Board seat for $50K.
Not exactly Democracy in action, eh?
We need an organization that will represent domainers for all the reasons that Mike so eloquently states. But these guys definitely don’t represent Joe Blow Domainer.
Alan
Most of the TRAFFIC shows have at least 1 or 2 domains that are auctioned off for the benefit of the ICA. The whole TRAFFIC downunder show (not the whole auction) was for the benefit of the ICA but I don’t know if they made any money.
Your observation on the interest of domainers on ICANN issues bang on.
Almost any post about ICANN or the ICA get fewer readers than a what sold at namejet, type of post.
For example today, joke post has more readers than ICA statement.
Crazy.
I do have to correct one glaring error in your comment.
I certainly do not blog about these important issues “while sipping Pina Coladas in my underwear”,
I’m an Grey Goose Guy and wear a bathing suit.
Pat
You are picking 1 issue out of the whole universe of issues and using that as the one test for the ICA.
Hell I’m the one that started that issue and called the ICA out.
The ICA represents domain holders and those in the domain business, including registrars.
Yes there are registrars that are not only members of the ICA but big financial supporters, like Tucows.
I hate that ICANN has allowed registrars to keep the expired domains of its customers and not allowing us to have access to them.
However, there is more at stake in the domain universe than this issue.
I’m more worried about keeping the one’s I got.
The ICA does represent the average domain holder in all ICANN matters (you know those guys are in charge of regulating the business your in) and right now there are a ton of issues that threaten your domains.
The ICA basically singled handedly killed the Snowe Bill, without them it would be law today.
As far as voting, as a “voting member” at $10K a year, I have only voted at 1 meeting in 2 years. (one of those votes involved the issue you raise & I was outvoted)
There is nothing to vote on.
There is no election of officers, its a very small organization with a very limited agenda.
When your a member of a group or a country not everything goes your way.
Sometimes a group like a country does something your against like the warehousing issue, but you don’t cut your own throat over one of these issues and lose sight of the bigger issue which is the trademark groups that are after our domains and we need representation in the process
bathing suit .. Tomato Tamato … :-))
Pat “You are picking 1 issue out of the whole universe of issues and using that as the one test for the ICA”
I think that’s what too many of us do. Mike’s reply was right on the money here. Regardless of what the ICA does or does not do for specific individual domainers we all need a voice for the greater purpose and the ICA is what we have.
Must join now ….
JP
Good question.
I Have no idea of the percentage of people that attend ICANN meetings, I personally have never gone.
But lets look at the list of people who commented on the Guide Book for the new gTLD’s:
Andrew!Alleman!(A.!Alleman)!
David!Allen!(D.!Allen)!
Amadeu!Abril!i!Abril!(A.!Abril!i!Abril)!
Adobe!Systems!Incorporated!(Adobe)!
Andrew!Allemann!(A.!Allemann)!
American!Bankers!Association!(ABA)!
American!Intellectual!Property!Law!Association!(AIPLA)!
Lana!Andreff!(L.!Andreff)!
Ron!Andruff!(R.!Andruff)!
I.E.!Arribillaga,!dot!EUS!!
Asia!Pacific!Top!Level!Domain!Association!(APTLD)!
Asociacion!PuntoGal!(PuntoGal)!
Association!Uninet!!
Association!of!National!Advertisers!(ANA)!!
At”Large!Advisory!Committee!(ALAC)!
AT&T!Inc.!(AT&T)!!
auDA!
Karl!Auerbach!(K.!Auerbach)!
Vittorio!Bertola!(V.!Bertola)!
BITS/Financial!Roundtable!(BITS)!
M.!Neylon,!Blacknight!Solutions!
Eric!Brunner”Williams!(E.!Brunner”Williams)!
John!Burden!(J.!Burden)!
Marilyn!Cade!(M.!Cade)!
ccNSO!Working!Group!on!Geographic!Names!(ccNSO!WGGN)!
Ronald!Chen!(R.!Chen)!
China!Internet!Network!Information!Center!(CNNIC)!
Chinese!Organizational!Name!Administration!Center!(CONAC)!
Edmon!Chung!(E.!Chung)!
City!of!New!York!(NYC)!!
City!Top”Level!Domain!Interest!Group!
Connecting.nyc,!Inc.!(Connecting.nyc)!
Coalition!Against!Domain!Name!Abuse!(CADNA)!
Coalition!for!Online!Accountability!(COA)!
Coalition!for!Online!Trademark!Protection!(COTP)!
Michael!Collins!(M.!Collins)!!
Phil!Corwin!(P.!Corwin)!
Matthieu!Credou!(M.!Credou)!
M.!Pochyla,!Ministry!of!Industry!and!Trade,!Czech!Republic!
Roy!DeFee!(R.!DeFee)!
Bertrand!de!la!Chapelle!(B.!de!la!Chapelle)
May 2009
Steve!DelBianco!(S.!DelBianco)!
Demand!Media!Inc.!(Demand!Media)!
J.A.!Andersen,!National!IT!and!Telecom!Agency,!Denmark!!
C.!Disspain,!ccNSO!Council!
DotAfrica!
dot!berlin!
dot!BZH!
Dot!Eco!LLC!(Dot!Eco)!
dot!EUS!
dot!koln!
DOTZON!GmbH!
eBay!Inc.!(eBay)!
eco!
eCOM”LAC!
Jaser!Elmorsy,!Bluebridge!Technologies!(J.!Elmorsy)!
Kevin!Erdman!(K.!Erdman)!
European”American!Business!Council!
J.!Scott!Evans!
Go!Daddy!
Fred!Felman!(F.!Felman)!
Paul!Foody!(P.!Foody)!
Jothan!Frakes!(J.!Frakes)!
Claude!Gelinas!(C.!Gelinas)!
Chuck!Gomes!(C.!Gomes)!
Jean!Guillon!(J.!Guillon)!!
Faye!Hammersley!(F.!Hammersley)!
Derick!Harris!(D.!Harris)!
Tony!Harris!(T.!Harris)!
Hearst!Communications!Inc.!!
Mike!Housman!(M.!Housman)!
HP.com!!
Robert!Hutchinson!(R.!Hutchinson)!!
INDOM.com!
Intellectual!Property!Constituency!(IPC)!
Intercontinental!Hotels!Group!PLC!(IHG)!
International!Anti”Counterfeiting!Coalition!(IACC)!
International!Olympic!Committee!(IOC)!
International!Trademark!Association!(INTA)!
Internet!Commerce!Association!(ICA)!
Internet!Society!of!China!!
Ron!Jackson!(R.!Jackson)!
Yoav!Keren!(Y.!Keren)!
Khamma!Group!LLC!!
Jaeyoun!Kim!(J.!Kim)
Adrian!Kinderis!(A.!Kinderis)!
Stacey!King!(S.!King)!
George!Kirikos!(G.!Kirikos)!!
Dirk!Kirschenowski!(D.!Kirschenowski)!
LEGO!et!al.!(Lego)!
Michael!Leibrandt!(M.!Leibrandt)!
Lovells!LLP!(Lovells)!!
Andrew!Mack!(A.!Mack)!
S.!Maniam!
MarkMonitor!Inc.!(MarkMonitor)!!
MarkMonitor!Inc.!et!al.!(MarkMonitor!et!al.)!
MARQUES!!
Max!Menius!(M.!Menius)!
M.!Mansell,!Mesh!Digital!Ltd.!!
Steven!Metalitz!(S.!Metalitz)!
Microsoft!Corporation!(Microsoft)!
Minds!and!Machines!
Alexei!Mykhaylov!(A.!Mykhaylov)!
National!Business!Coalition!on!E”Commerce!and!Privacy!(NBCEP)!
NetChoice!!
Jeff!Neuman!(J.!Neuman)!
NIC!Mexico!!
Noncommercial!Users!Constituency!(NCUC)!
Mike!O’Connor!(M.!O’Connor)!
Michael!Palage!(M.!Palage)!
Pat!
Mons.!Carlo!Maria!Polvani,!Holy!See’s!Representative!
Jim!Prendergast!(J.!Prendergast)!
A.!Ptashniy!
Regions!Financial!Corporation!(Regions)!
Register.com!!
Registries!Constituency!(RyC)!
Susan!Reynolds!(S.!Reynolds)!
Mike!Rodenbaugh!(M.!Rodenbaugh)!
Kristina!Rosette!(K.!Rosette)!
Constantine!Roussos!(C.!Roussos)!
Tim!Ruiz!(T.!Ruiz)!
Ken!Ryan!(K.!Ryan)!
Jarrod!Seitz!(J.!Seitz)!
James!Seng!(J.!Seng)!
Philip!Sheppard!(P.!Sheppard)!
SIDN”Netherlands!(SIDN)!
Shahram!Soboutipour!(S.!Soboutipour)!
Smartcall!
Shahram!Soboutipour!(S.!Soboutipour)!
Sophia!B.!(Ethiopia)!
Software!&!Information!Industry!Association!(SIIA)!!
Alexei!Sozonov!(A.!Sozonov)!
Paul!Stahura!(P.!Stahura)!
Werner!Staub!(W.!Staub)!!
S.!Subbiah!
Wil!Tan!(W.!Tan)!
P.!Taylor,!Bradford!&!Bingley!
3M!Company!!
Time!Warner!Inc.!(Time!Warner)!
Tom!
Marc!Trachtenberg!(M.!Trachtenberg)!
Patrick!Vande!Walle!(P.!Vande!Walle)!
Verizon!Communications!Inc.!(Verizon)!
Visa,!Inc.!(Visa)!
Mary!Wong!(M.!Wong)!
Worldwide!Media,!Inc.!!
Yahoo!!Inc.!(Yahoo!)!
Satoru!Yanagishima!(S.!Yanagishima)!!
Zodiac!Holdings
How many domainers do you recognize?
How many trademark groups, Fortune 500 companies are represented?
I think there is your answer
In the interest of not letting the perfect be the enemy of the good, I just popped for the Associate level.
Maybe if enough angry small-timers like me join and harrass the ICA enough, we can get them to act on the warehousing issue.
It’s a given they’re not going to do anything at all without cash, and the trademark lobby will be a well funded adversary to say the least.
Pat
I want to send out a personal thank you for joining.
We need hundreds of domainers to wake up, spend a little and protect our interest, there is sure enough people coming after us