The following is the report on the ICANN forum on the new URS proposal which was held in New York Yesterday by Phil Corwin of the Internet Commerce Association, (the “ICA”)  that attended to represent domainers interests:

Here are Mr. Corwin comments:

“”””
On Monday, July 13th, ICANN opened its global consultation summer road show on Broadway in the ornate Hudson Theatre in the Millennium Hotel. The show was very low in entertainment value and, while the orchestra seating was fairly well filled, the balconies sat empty. It closed after a single run and is now on its way for a July 15th opening, and closing, in London.

I entered the show with strong reservations about its purpose and its selection of speakers – concerns that I shared on Saturday the 11th in an e-mail sent to members of ICANN’s Business Constituency, of which ICA is an International Member (my e-mail is reproduced at the end of this posting).  They were reinforced when, upon registration for the event, I was handed a four page document entitled “New gTLD Program in Brief” which concluded its answer to the question “What is ICANN doing to protect trademark holders?” with, “Finally, ICANN has been working closely with the trademark community through the Intellectual Property constituency to find solutions to potential issues for trademark holders in implementing new gTLDs.” That statement fails to note that many of the “solutions” proposed in the IRT Report are very controversial throughout the ICANN community beyond the IPC. (Needless to say, the memo did not ask or answer the question, “What is ICANN doing to protect registrants from the solutions proposed by trademark holders?”)

Even more worrisome were the feedback forms distributed to every attendee. Despite the fact that the official comment period on the IRT report closed one week ago, on July 6th, here was ICANN requesting feedback on every major aspect of the IRT Report’s recommendations from Consultation attendees. Feedback Form 3 dealt with the Uniform Rapid Suspension System and asked for one of two boxes to be checked:
·        I am broadly in support of the URS; or
·        I am broadly opposed to the URS

Below the boxes was a large white space in which attendees were invited to jot down their “General comments or questions about the URS”. Finally, at the bottom of each page was a line reading “my interest in this matter is defined by my work as/with a:” followed by a long list of possible connections, such as registry, registrar, or large corporation – but, remarkably, with no listing for “registrant” (other than the catch all “other”). ICANN thus continues its tradition of failing to perceive the existence of registrants, as is demonstrated by its finance dashboard (see http://forms.icann.org//idashboard/public/ ) which shows in bar graph form that ICANN receives the vast majority of its funding from registrars and registries, but apparently not a single dollar from registrants who fail to get any bar (even though they supply nearly all the money that flows through ICANN’s contract partners). Registrants to ICANN are seemingly like plankton to Moby Dick.

NY-based attorney Rita Rodin, a member of ICANN’s Board, furnished a brief introduction in which she stated that the Board was committed to protecting all rights on the Internet as much as possible (one hopes that the Board includes registrant rights in that commitment) and that she hoped the day’s event would lead to compromise, which was interesting given the IRT’s assertion that it had already made so many compromises (like not proposing capital punishment for cybersquatting).

Next Kurt Pritz, the senior ICANN staff person associated with the new gTLD program, stated that new gTLDs would not be implemented at the expense of trademark holders or registrants (well, that was a welcome assurance – seriously) and then went on to state his hope that the day would result in “solid recommendations for the Applicant Guidebook” (which seemed to validate our concern that the closed comment period on the IRT was being reopened).

Then began the most tedious portion of the day, in which six members of the officially disbanded but briefly reunited IRT began a presentation on their work and recommendations that those of us just back from Sydney had sat through several times already. Needless to say, nothing new was heard. They were followed by long and arcane remarks by Brian Beckham of WIPO. Much more riveting were remarks made by Richard Tindal of Demand Media, who panned the proposed Globally Protected Marks List (GPML) and then went on (contrary to my weekend expectations) to severely critique the URS, saying that as proposed it would surely be abused by complainants. He then proposed myriad changes to it, few of them likely to arouse enthusiastic support from the trademark world.

Following an hour lunch break attendees were given an opportunity to line up at two microphones to ask questions or make comments. Many from the fair use and registrant community laid into various aspects of the IRT recommendations, especially the URS, while representatives of trademark interests bemoaned the whole idea of new gTLDs and complained that the IRT’s proposed  solutions didn’t go far enough.

After about 15 minutes wait I finally reached one of the mikes and made remarks on behalf of ICA along these general lines:

·        Several times at the Sydney meeting, ICANN Board Chairman Peter Dengate Thrush stated that the IRT’s mission was to put together trademark protection recommendations and then see if they could garner consensus support.

·        Anyone who had been at the public sessions in Sydney or who had reviewed the comment letters filed on the IRT Report know that there was only controversy, not consensus, on many of those proposals.

·        The IRT Report’s “sell by” date was July 6th, the end of the comment period, and there had been no sale to the ICANN community.

·        As I has spoken twice to the Report at public sessions in Sydney, and as ICA had just filed a lengthy comment letter, I was not going to repeat our substantive arguments against the URS at this session – both to avoid boring the audience and because we did not recognize the validity of soliciting further comments on the report at the NYC and London consultations. Either those Feedback Forms should be ignored or the comment period should be reopened to everyone.

·        However, I would reiterate our firm belief that the URS was a major new policy proposal and therefore, under ICANN’s rules, could not be implemented as a mere technical detail but had to be run through a formal Policy Development Process (PDP).

·        While ICA had been accused by trademark attorneys in Sydney of not being constructive, or of seeking to obstruct the introduction of new gTLDs, nothing could be further from the truth. In fact, we had sought a seat on the IRT to provide constructive input, we had no major objection to two of the IRT’s recommendations, and we were seeking to be constructive by expressing our good faith willingness to participate in an expedited PDP on UDRP reform. That could result in a balanced work product that addressed current abuses of and problems with the UDRP for both registrants and trademark interests, and could put that improved UDRP in place across the entire gTLD space, both incumbent and new – and that would be in the best interests of trademark holders, as it would include .com. We are ready to engage constructively — so, please ICANN, give us a constructive process to participate in!

·        If ICANN wants continued community support for its professed model of bottom up consensus policymaking it has to put reality into that rhetoric by conceding that the URS is a major new policy proposal and treat it accordingly. And if it wants to be truly independent following the termination of its JPA relationship with the U.S. it has to avoid taking actions look like legislating beyond terrestrial law as that just invites governments to step in on a multinational basis.

Noted domain registrant attorney John Berryhill was also in attendance and, while praising much of the IRT’s work, recounted several instances of serious complainant UDRP abuse that needed to be addressed by comprehensive UDRP reform. John and I talked later and he indicated his willingness to bring his expertise to bear in any expedited PDP along the lines of ICA’s suggestion – and I would guess that many of the industry’s other top legal minds would be willing to contribute as well (Paul Keating, for example, submitted a thoughtful IRT comment that proposed a streamlined manner of dealing with defaulting UDRP cases as a substitute for the URS).

As the long day drew to a close a panel discussion of potential malicious behavior at new gTLDs demonstrated that this topic, one of the other four “overarching issues” that ICANN has committed to effectively address before opening the new gTLD application window, is far behind the trademark discussion in terms of even grappling with the problems much less proposing solutions. That had many in attendance speculating that ICANN might have to again push back its projected opening of the window, now scheduled for the first quarter of 2010.

Toward the very end of the day’s program I raised a question regarding what happens if ICANN staff, after reviewing comments and statements, decides that the URS or another IRT recommendation indeed constitutes new policy. Even after I got an answer I’m still not sure of exactly what happens, and this is clearly a subject that needs more inquiry.

So there you have it, my report on ICANN’s debut on Broadway. Was this show worth the cost of production? You might want to answer that question, because registrant dollars paid for it – even if registrants are absent from ICANN’s Finance Dashboard.”””