Thanks so much for sending this update, KK. I'm so glad that you are following and active on this issue. Should we have a team of people in this group who can assist you? This sounds like an issue we should be working closely on in the coming months and have a group of people coordinating together. Please let me know how I can help in this group. Thanks, Robin On Apr 14, 2010, at 1:53 AM, Konstantinos Komaitis wrote: > Dear all, > > I would like to give you an update on the ICANN consultation on new > gTLD Agreement amendment process and post-delegation dispute > resolution process I attended yesterday evening. This meeting was > initiated by the Registry Constituency, which is concerned with the > PDDRP and its potential impact upon the future of Registries. > > A quick reminder: the Post-Delegation dispute resolution process is > an additional trademark defense under the new gTLD programme. Under > this process, trademark owners will be able to turn against a > Registry and seek to prove that the Registry has engaged in a > systematic registration of domain names that infringe upon their > rights. The remedies are severe and can potentially lead to the > cancellation of the contractual relationship between the Registry > and ICANN. So, in essence, every Registry is amenable to trademark > intimidation and abuse, just like domain name holders are. If this > system is finally endorsed trademark owners will have at their > disposal the following mechanisms: the UDRP, the newly-established > URS and the PDDRP. For me, all these mechanisms demonstrate an > awkward resemblance, which demonstrates a clear lack of > consideration and the impact that they can potentially have upon > the whole registration system. The full text of the policy can be > found here: (http://www.icann.org/en/topics/new-gtlds/draft- > trademark-pddrp-redline-15feb10-en.pdf) > > One of the things that was heavily discussed was the involvement > and role of ICANN within this process. ICANN seeks to waive any > sort of responsibility and abstain from actively being involved in > the process, something that of course Registries do not agree with. > Registries want ICANN to be part and take full responsibility of > the decisions reached under the PDDRP, because of the contractual > agreement that it holds with Registries. Amy Stathos claimed that > the PDDRP is not part of the contractual agreement that Registries > hold with ICANN and therefore there is no justification for ICANN’s > involvement in the process. But here is the catch – under the PDDRP > ICANN will be responsible for determining the remedies should a > PDDRP panel find that the Registry has been involved in systematic > registrations that infringe trademark rights. So on the one hand > ICANN does not want to be involved in the process so as to avoid > any sort of liability issues, but on the other hand they are fully > involved. > > Kathy Kleiman expressed concerns over the justification of such a > system and the way it has been promoted, while Jeff Neuman said > that this policy raises serious legal issues, such as privity of > contract, that have not been clearly taken under consideration and > will create much more problems than the ones they seek to address. > There was a great fear by most of the participants that, just like > the UDRP, the PDDRP will be abused by trademark owners with > Registries having no other option but to suspend and cancel domain > names in an effort to avoid being engaged in the PDDRP. Chuck Gomes > made the very accurate comment that in any case we need to think > that the registration system is not only aimed to please big brand > owners and that there are so many other participants, like > individual users and small trademark owners, that we tend to forget. > > The Registries’ position is also that monetary damages are not > appropriate for this system and that a de novo review should be in > place that will allow the losing party to challenge the PDDRP > decision. There was a lot of discussion on the de novo review issue > – many analogies were drawn with the UDRP and the way de novo > review is working, many of which were mistaken on the fact that > they considered the UDRP an arbitration process, which is not > (there is US case having established this: Dan Parisi v. Netlearing > Inc.). Moreover, Registries asked for the incorporation of safe > harbours within the PDDRP (like in the UDRP) and for some kind of > monitoring of the complaints (the complaint should have a close > nexus with the alleged infringed rights – e.g. Nike cannot ask the > cancellation of domain names relating to Adidas). Finally, > Registries also asked for a 3-member panel rule, instead of a > single panel. The National Arbitration Forum, which was > participating in this dispute, agreed with most of the Registries’ > comments and said that under its current design the PDDRP is open > to abuse. > > I spoke about all these issues in line with the comments we made > during the public period (http://forum.icann.org/lists/ > ppdrp-15feb10/).I expressed the great fear that this process, > unless very carefully designed and justified, will upset the > registration culture and will create a very unfriendly environment > for individual registrants. In essence what this policy does is > asking Registries to become content-controllers, a task that they > don’t want nor should they be allowed to perform. I expressed my > fear that we are designing a DNS and the new gTLD programme that is > tilted toward protecting trademark interests, forgetting that it is > mainly individual users and registrants that are mainly supporting > the DNS. I also expressed our great concern over the way WIPO has > handled UDRP disputes and the way it is expected it will handle > PDDRP ones (something that as you can understand did not go down > well with WIPO, which was participating in the call). On the three > member panel issue, I said that this rule must be implemented > because we are talking about the potential cancellation of a whole > Registry, something that will have a roll-on effect upon individual > and non-commercial domain name registrants. > > I had to cut the call short by 30 minutes because it was getting > too late and unfortunately I do not have anything to report on the > issue of Registry amendment process. However, the meeting was > recorded and it will be made available. > > KK > > Dr. Konstantinos Komaitis, > Law Lecturer, > University of Strathclyde, > The Law School, > The Lord Hope Building, > 141 St. James Road, > Glasgow, G4 0LT > UK > tel: +44 (0)141 548 4306 > http://www.routledgemedia.com/books/The-Current-State-of-Domain- > Name-Regulation-isbn9780415477765 > Selected publications: http://hq.ssrn.com/submissions/MyPapers.cfm? > partid=501038 > Website: http://domainnamelaw.ning.com/ > > IP JUSTICE Robin Gross, Executive Director 1192 Haight Street, San Francisco, CA 94117 USA p: +1-415-553-6261 f: +1-415-462-6451 w: http://www.ipjustice.org e: [log in to unmask]