On November 11th the Czech Arbitration Court (CAC) proposed a quick, cheap,  fast track UDRP process.

The ICA says this proposal “is worse than the URS, and a danger to all current Domain  name portfolios.”

“Allowing it to be put in effect via Supplemental Rules would be a scandalous travesty.”

By reducing the complaint form to a bare minimum, a very low application fee, and without providing any penalty for losing, this process will encourage parties to “take a shot” to get domains away from the current holders.

The comment period on this proposal to ICANN close Tomorrow, Friday December 11 at midnight.

As of time of publication there have only been 5 comments posted on this proposal which means you need to make your voice heard or risk having this being approved by ICANN.

This is how the CAC itself describes the proposal:

“The so called Expedited Decision Case (EDC) as proposed is a simple and straightforward procedure, which will carry a “substantially lower filing fee” and  require a “substantially shorter complaint”.

This proposal came directly from the Czech Arbitration Court which although  has no independent authority to do so is attempting to unilaterally adopt UDRP policy changes.

According to the ICA, which has been out front fighting this huge threat to domainers portfolios:

The EDC would not allow for 3 member panels.

By significantly reducing the costs of filing complaints we can only anticipated an increased UDRP filings.

Further, if this UDRP arbitration provider is allowed to unilaterally adopt new UDRP policies we can only expect other  ICANN-accredited providers offer their own fast-track processes and additional incentives to gain market share of UDRP complaints.

I think the ICA is right.

The UDRP and WIPO auctions were set up as  a “legal proceedings” which was implemented to protect parties rights in and to domain names.

It is now, through this proposal and WIPO’s announced plans for its own fast track process, turning it into a competivie business where each ICANN approved provider is going to be promoting its services to its biggest customers, namely trademark holders by outdoing each other in quicker, cheaper methods which ensure better results for the trademark holders.

UDRP and WIPO’s are moving in a direction where it is no longer about “justice”, but about becoming a profit center, a money making enterprise, which is very troubling.

I also agree with the ICA’s statement on this matter that:

“””To be clear, ICA is not opposed to consideration and adoption of a faster and less expensive process for those UDRP cases in which respondents default or there are no
disputable material facts. Indeed, throughout the consideration of trademark protections for new gTLDs as well as the URS we have urged ICANN to implement a UDRP reform
…as well as address abuses perpetrated by both registrants and complainants. ….“We continue to strongly urge ICANN to establish an expedited PDP for UDRP reform at both incumbent and new gTLDs, and to consider entering into formal contractual relationships with UDRP providers.”

So it ‘s time for all domainers to speak out against this proposal .

As time is short and the stakes high, feel free to take all or part of Mr. George Kirikos comments to this proposal and use them in your own comments or simply endorse his submitted comments which follow:

The CAC proposal represents an invitation to large-scale assembly line Reverse Domain Name Hijacking, and a further erosion of the rights of registrants to due process.

UDRP providers are supposed to be neutral, but the pro-complainant bias is evident in the proposal.

For example, Rule 15(e) of the UDRP states:

http://www.icann.org/en/udrp/udrp-rules-24oct99.htm

“If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name
Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and
constitutes an abuse of the administrative proceeding.”

This is supposed to happen even in cases where there is no response by the domain name registrant. However, pages 14 and 15 of the CAC draft decision
template leaves out that possibility entirely:

http://www.icann.org/en/dndr/udrp/cac-proposed-supplemental-rules-11nov09-en.pdf

It even permits the complainant to *write* the “facts” of the case (section 4 of page 15 of the above document). Panelists are simply left to work the
assembly line, checking boxes of “yes” or “no”, with a heavy bias towards “yes”.

The pricing schedule even permits negotiation between the complainants (section g of page 10) and CAC over fees for getting bulk discounts for bringing
multiple complaints to their forum in a calendar year. This is further evidence of bias — real courts do not provide quantity discounts to encourage forum
shopping.

The facts are that the amount of cybersquatting has been going down substantially, as monetization of TM domain names via PPC and other methods has
been substantially eroded as Yahoo, Google and other advertising networks improved the policing of their systems. This has resulted in a decrease in UDRP
cases and even TM lawsuits.

Instead of rejoicing at this positive outcome, UDRP providers resent the loss of business. In order to combat that loss of business, we see the
ever-expanding definition of “cybersquatting” by them. NAF openly admitted this in their IRT comments:

http://forum.icann.org/lists/irt-final-report/msg00178.html

“Panelists have taken the opportunity, over time, to agree with those complainants and broaden the scope of the UDRP, but it started out as
a mechanism only for clear cut cases of cybersquatting.”

Panelists are supposed to be unbiased and neutral, not opportunists who stretch the rules in order that more and more marginal cases are brought through their
doors. UDRP was designed for clear-cut cases, period.

It is high time that ICANN evaluated the UDRP providers and sought public comment as to whether they have been neutral. This should include contacting
participants (complainants *and* respondents) of past cases, as well as domain name registrants, via mandatory email through registrars educating them as to
the implications of policy changes.

The Wall Street Journal had an important article demonstrating how providers like NAF have been in turmoil:

http://online.wsj.com/article/SB125548128115183913.html?mod=googlenews_wsj

“Banks “don’t need the taint that comes with mandatory arbitration.”

“While telling consumers that it was an impartial arbitrator, NAF worked closely with creditors, the regulator claimed, including drafting claims against consumers.”

“Former arbitrators, a congressional subcommittee, consumers and government suits are now alleging that NAF has been systematically ruling against consumers for years.”

“A congressional subcommittee, which began an investigation last year to study the fairness of mandatory arbitration, concluded in July that the current arbitration system is “ripe for abuse.” Arbitration, as “operated by NAF, does not provide protection for those consumers,” the committee said.

“Before that case, she had ruled in favor of credit-card companies 18 consecutive times, she told the committee. She says she finished several pending NAF cases after she ruled for the card holder, but then wasn’t given more cases. The official reason the NAF gave for canceling more work was scheduling conflicts. But Ms. Bartholet said in an interview that an NAF manager told her she was likely removed because she ruled for the debtor.”

In conclusion, these kinds of proposals by the UDRP providers should be rejected, and represent a perversion of the system of justice that domain name registrants rely upon. It is clear they were created only in consultation with complainants, and not with normal domain registrants in the loop. The right to due process demands a higher standard than that shown to date.

ICANN staff and the GNSO should prepare an issues report, and perhaps fund independent scholarly research like that conducted by Professor Michael Geist

in the past:

http://www.udrpinfo.com/

To eliminate forum shopping, cases should be randomized between all providers.

Indeed, eResolution, a past provider, left the business because other providers were tilting the rules more and more towards complainants:

http://www.theregister.co.uk/2001/12/04/eresolution_quits_domain_arbitration/

“It is but an open secret that lawyers advising their clients in domain name cases have no scruples about quoting the figures and saying that the odds are better with a given provider.”

The emphasis in the future should be on accurate and verified WHOIS, to allow disputes to be handled in the court system, and to also reduce the amount of abuse that happens on “throwaway” domains registered with fake or anonymous WHOIS. If *both* parties are interested in ADR, they can both opt-in to use
arbitration providers, however it should not be forced upon domain registrants.

Real courts would not tolerate the bias evident in these kinds of proposals from pro-complainant UDRP providers. More and more we see the system abused, as a method of buying a lottery ticket in order to reverse hijack domain names from legitimate registrants. CAC simply proposes to make that reverse hijacking faster, cheaper, and with even less due process than exists today.”””

Well said George.

Domainers you need to go to work.

You can’t allow this crap to be passed without your voice being heard and only 5 comment being posted.

Your comments must be submitted via e-mail to:

cac-prop-supp-rules@icann.org by Friday midnight EST or PST depending on your time zone.

Once you submit your comments you will receive an e-mail from ICANN which you will have to confirm or your comment will not be received