Phil Corwin Of ICA Appointed To Internet Committee of the International Trademark Association (INTA)

Phil Corwin of the Internet Commerce Association (ICA) has been appointed to the serve on the Internet Committee of the International Trademark Association (INTA) for a two-year term commencing in January 2014

International Trademark Association (INTA) is the largest group of its kind.

Mr. Corwin stated:

“This will allow me to bring the perspective of domain registrants and others into the Committee’s consideration of trademark policy on the Internet Committee for the next two years!”

This year, more than 3,200 members applied to serve on INTA committees so its quite a honor for Mr. Corwin and a great opportunity for domain holder issues to be heard in the largest organization of trademark holders and their lawyers

Internet Committee of INTA oversees some subcommittees including:

Online Use Subcommittee
Domain Disputes, Ownership and Whois Subcommittee
New gTLD Registry Issues Subcommittee
International Domain Name Issues
Governance Subcommittee

Current members of the Committee include

Fabricio Vayra Committee Vice Chair
Time Warner Inc

Andrew Abrams
Google

Thomas Barrett
Encirca

Paul D. McGrady
Winston & Strawn LLP

David Taylor
Hogan Lovells (Paris) LLP

There are 25 total members from around the world.

Its a pretty amazing accomplishment for Phil and a great sounding board for domain holders to get their issues heard among the biggest brands  in their world and their counsel.
As part of Mr. Corwin’s appoint he will be required to attend two meetings a year in addition to the ICANN meetings that Mr. Corwin already represents the ICA at each year.

Needless to say your contributions to the ICA are needed more than ever.

If you think the new gTLD’s and rules coming out of the program won’t effect you or your current domain holdings you should read the excellent piece on DirectNavigation.com today on how new gTLD rules, in this case the hundreds of domains that can’t be registered in new gTLD may come block to exist exact matching existing domains including .com domains.

The list includes lots of two and three letter domains.

Congrats to Phil

 

CADNA: Costs Of Defensive New gTLD Registrations To Be Double The Total Cost Of All .Com Registrations

As pointed out by the Phil Corwin of the Internet Commerce Association (ICA) The Coalition Against Domain Name Abuse (CADNA) has launched another offensive at the new gTLD program teaming up with the Council of Better Business Bureaus (BBB) to launch a month-long “‘Know Your Net’ gTLD public awareness campaign”

“Their goal is to enact amendments to the U.S. Anti-Cybersquatting Consumer Protection Act (ACPA) that would expand the law’s coverage beyond domain registrants by creating secondary liability for domain system intermediaries like registries and registrars, increase statutory damages penalties for all targets, and establish a ‘loser pays’ regime that favors deep-pocket corporate litigants. If such a proposal was enacted it would vastly increase the litigation leverage of trademark owners and tilt the playing field against defendants in a manner that would result in a high probability of domain shutdown without any final verdict from a court. In short, it’s a SOPA-like proposal grounded in trademark rather than copyright.”

CADNA has claimed that defensive registration costs to brand holder will cost $2.4 Billion dollars

“If businesses register as aggressively [as they did at the .XXX adult content TLD] in all of the new ‘open’ gTLDs, they will be forced to spend almost $10 billion….“Domain name registrations in the new gTLDs likely will be lower than they where (sic) in .XXX. But even a quarter of the .XXX number of registrations would cost about $2.4 billion

The ICA counters that CADNA is basically claiming that the total cost of defensive domain name registration will be double the total cost of the cost of owning every .com and .net in the registry.

According to the most recent April 2013 VeriSign Domain Name Industry Brief there were 252 million registered domains at the end of 2012, of which about half (121 million) were in .Com or .Net. The average annual registration fee for a .Com or .Net domain is less than $10 – but let’s go high and assume that the average annual fee for all .com and .net’s are $10, they the total amount spent on all .com and .net registrations is around $1.2 Billion.

How can defensive registrations cost brand holders twice as much money as the total registration cost of the new .com and .net registry combined?

Of course there are a lot of other issues with the CADNA numbers.

To use .XXX as an example which had a retail registration fee of $100 and a had a high degree of defensive registrations due to the nature of the subject matter, we at TheDomains.com would expect only .sucks which is only one of 1,400 or so new gTLD strings to generate the amount of defensive registrations that .XXX saw.

We applaud the ICA for keeping an eye on trademark holders claims and the numbers.

We are watching too.

ICANN Declares Initial Evaluation Of New gTLD’s Over But There Are 29 To Go Including .Search & .ABC

In a press release this afternoon ICANN proudly announced that the “Initial Evaluation (IE) phase of the new generic Top-Level Domains (gTLD) program is concluded.”

“This is an extraordinary landmark which demonstrates the progress in this program,” said Akram Atallah, President of ICANN’s Generic Domains Division. “We are looking forward to the innovations that these new introductions will enable on the Internet.”

“Out of the 1,930 new gTLD applications submitted, a total of 1,745 applications passed Initial Evaluation, 32 have gone into Extended Evaluation, and 121 were withdrawn from the program. ”

The only problem is there are still 29 new gTLD applications showing as still being in Initial Evaluation on ICANN’s website.  These 29 applications are not withdrawn, have not passed IE, have no failed and have not been made eligible for extended evaluation.

The fate of those 29 applications is still unknown and there are some “big” applications still in the Initial Evaluation status including Google’s much talked about application for .Search; the American Broadcasting Company’s application for .ABC; and The Better Business Bureau’s application for .bbb;  the city of Rome’s application .Roma; the global accounting firm of Deloitte Touche Tohmatsu application for .Deloitte; the only other applicant for .Sex filed by Internet Marketing Solutions Limited, other than ICM Registry’s, the operator of .XXX; Rogers Communications application for .Rogers and another application that has gotten some mainstream press,  .Kosher.

Here are the 29 applications that are still in IE:

49 深圳 Guangzhou YU Wei Information Technology Co., Ltd.
63 佛山 Guangzhou YU Wei Information Technology Co., Ltd.
104 广州 Guangzhou YU Wei Information Technology Co., Ltd.
230 BAR Punto 2012 Sociedad Anonima Promotora de Inversion de Capital Variable
629 TATA[8] TATA SONS LIMITED
721 TUI[8] TUI AG
786 ROMA Top Level Domain Holdings Limited
869 BOSTIK Bostik SA
870 TOTAL Total SA
1033 JIO Affinity Names, Inc.
1276 BOEHRINGER Boehringer Ingelheim Pharma GmbH & Co. KG
1280 PWC PricewaterhouseCoopers LLP 
1329 DELOITTE Deloitte Touche Tohmatsu
1440 LPLFINANCIAL LPL Holdings, Inc.
1455 BBB Council of Better Business Bureaus, Inc.
1632 ABBVIE Abbott Laboratories
1665 SEX Internet Marketing Solutions Limited
1725 LECLERC A.C.D. LEC Association des Centres Distributeurs Edouard Leclerc
1777 KOSHER Kosher Marketing Assets LLC
1781 LAMER ELC Online Inc.
1789 ABC American Broadcasting Companies, Inc.
1807 SEARCH Charleston Road Registry Inc.
1808 ROGERS Rogers Communications Partnership
1824 FIDO Rogers Communications Partnership
1842 AQUITAINE Région d’Aquitaine
1850 BANQUE GEXBAN SAS
1868 ADAC Allgemeiner Deutscher Automobil-Club e.V. (ADAC)
1869 MMA MMA IARD
1889 FAGE FAGE Luxembourg S.à r.l.

 

The ICA Forces ICANN To Issue A “Status Report on UDRP/URS Providers & Uniformity of Process”

ICANN issued a Status Report on UDRP Providers and Uniformity of Process, last night and the timing of it makes it look as a direct result of the criticism of Phil Corwin of the Internet Commerce Association (ICA) made public during the ICANN meeting that concluded on Thursday.

First for the report, then some comments will follow:

“”Issues relating to Uniform Domain Name Dispute Resolution Policy (“UDRP”) and uniformity of providers started to arise within ICANN in 2010. Commenters raised concerns regarding how ICANN can and should enforce uniformity among the approved UDRP providers. At that time, ICANN stated that it would undertake a review of its relationship with its UDRP providers, which it did. This memo is the culmination of that effort.

“”There are two documents that are required for universal, uniform operation of the UDRP. The first is the policy itself, at http://www.icann.org/en/dndr/udrp/policy.htm (“Policy”), setting out the scope of relief and the basis for mandatory administrative hearings that may be brought.

The second document set outs the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), at http://www.icann.org/en/dndr/udrp/uniform- rules.htm, which provide the baseline procedural requirements that must be followed in a UDRP proceeding, such as required notice to a respondent, time for filing a response, and standardization of a practice for appointing the administrative panel in every proceeding brought under the UDRP.

Each approved UDRP provider is responsible for maintaining its own set of supplemental rules, defined as “the rules adopted by the Provider administering a proceeding to supplement these Rules.

Supplemental Rules shall not be inconsistent with the Policy or these Rules and shall cover such topics as fees, word and page limits and guidelines, file size and format modalities, the means for communicating with the Provider and the Panel, and the form of cover sheets.” (Defined in the Rules, at http://www.icann.org/dndr/udrp/uniform-rules.htm.)

As part of the approval process, potential providers must provide ICANN with a copy of their proposed supplemental rules, which are reviewed to confirm that there is no conflict with the Rules and the Policy, and also to confirm that the potential provider has an understanding of the policy.

Contracting with UDRP Providers

One of the most common requests that ICANN has received regarding UDRP providers is to implement a contract across providers that will require uniformity in proceedings.

ICANN has carefully considered whether the introduction of contracts is feasible or useful in the scope of UDRP proceedings, and has determined that contracts would be a cumbersome tool to assert to reach the same outcome that exists today. Just as UDRP providers are approved by ICANN, ICANN can always revoke its approval if a provider is found to no longer meet the standards that supported its approval.

For example, if a UDRP provider is found to be acting in violation of the UDRP, or if the provider has Supplemental Rules that are in conflict with the UDRP and the Rules, and the UDRP provider failed to remedy that conflict, there is nothing in either of those situations that precludes ICANN from revoking approval.

Imposing a contractual relationship could actually make it more difficult for ICANN to take corrective action. Here, the UDRP and the Rules set forth all of the expected actions of the UDRP provider; a contract would only be repetitive in this case.

Although some have argued otherwise, the situation with the UDRP is different from the Uniform Rapid Suspension System (URS) that has been established for the New gTLD Program.

Unlike the UDRP, the URS is not based on a policy.

ICANN has used Memoranda of Understanding to govern the relationship with each of the selected URS providers, in which each of the URS providers agree to implement the URS services in accordance with the procedures laid out in the Applicant Guidebook, as they might be amended from time to time.

The URS providers also agree to maintain supplemental rules that “may not contravene or be inconsistent with the URS Procedure or URS Rules.” (See http://newgtlds.icann.org/en/applicants/urs for more information on URS providers.) These are the same requirements that UDRP providers are subject to, without a contractual relationship.

 

Forum Shopping and Provider Concerns

 

A frequent concerns raised regarding UDRP providers is the potential for “forum shopping,” or that UDRP complainants will seek out providers that they believe will provide a better result.

The provision of contracts, however, will not stop complainants from filing UDRP disputes with their preferred providers.

In fact, one of the expected benefits of the diversity of UDRP providers is to provide further choice to all who may invoke the UDRP, including issues of geography and language.

UDRP providers are expected to perform to the standards set forth in the UDRP.

So long as those standards are used, and the provider is adhering to the UDRP, the choice is appropriate to leave to a complainant as to which UDRP provider it wishes to use.

Many of the concerns raised about the uniformity of UDRP providers are based on the premise that there are UDRP providers today that act outside of the UDRP.

However, the few reports or complaints that ICANN has received regarding existing UDRP providers have not evidenced behavior that would require ICANN to consider whether there was a need to revoke its approval.

Of course, there is always the future possibility that an issue of non-compliance will arise that will require corrective action.

In recognition of that potential, ICANN commits that substantiated reports of UDRP provider non-compliance with the UDRP or the Rules will be investigated.

If the investigations uncover issues of UDRP provider non- compliance, ICANN will work with the affected UDRP provider to determine if the issue can be remedied. If the issue cannot be remedied, and the UDRP provider cannot – or refuses – to return to acting in conformity with the UDRP, ICANN will take action, which might include revocation of its approval of the UDRP provider, taking into account issues relating to the transferring or completion of pending matters before that provider.

 

Provider Approval Process

The work related to the approval of UDRP providers is not solely within the control of ICANN staff and Board.

At the time the UDRP was implemented, there was an indication that “The Generic Names Supporting Organization (GNSO) is currently undertaking a review of the UDRP, and will include the approval process for dispute-resolution providers as part of this review.” See http://www.icann.org/en/dndr/udrp/provider-approval-process.htm.

In the interim, 10 required elements for applications were set forth on that approval process page.

In 2003, the GNSO conducted a survey to prioritize issues relating to the UDRP, as seen in a UDRP Issue table, and raised the issue of “[s]hould standards for accrediting providers and panelists be promulgated?”.

This issue was ranked fourth in level of import, and there is no further mention of the issue available on the GNSO Issues page.

As a result, the Approval process listed as “provisional” in 2000 has remained in effect.

This issue was re-raised within the documentation for a policy development process regarding the UDRP that was before the GNSO Council in 2011, and could be included within the continuation of that PDP when the work is reinitiated after new gTLDs are delegated into the root.

Summary

UDRP providers are central to the maintenance of one of the policies that is most central to rights protection within gTLDs, the Uniform Domain Name Dispute Resolution

Policy. UDRP providers are expected to adhere to all portions of the policy – and it is important for ICANN to know if they are not doing so.

However, a contractual regime is not required for ICANN to have enforcement power over the UDRP providers; the established UDRP and Rules set out the parameters of the UDRP providers’ conduct, and they may not act in contravention of the Policy or Rules.

While there has not been, to date, a need for ICANN to revoke its approval of any UDRP provider, the concerns raised in the community make clear that ICANN has to be prepared for this potential.

As a result, ICANN is committed to thoroughly investigate complaints of non-compliance and take corrective action as appropriate.

 

So ICANN is saying they don’t have contracts with UDRP or URS providers nor do they need one.

Seems like process which for UDRP is being used thousands of times a year to take property away from property holders should be subject to some contractual relationship and the upcoming URS which is much scarier for domain holders should require a contract between ICANN and the providers.

Why is ICANN making new gTLD registries sign contracts, why not just refer them to a list of guidelines with the thought that there registry could be suspended if they violate the terms of the registry guidelines?

For an organization that pushes a LOT of paper, its about the only issue involving ICANN that is not heavily contracted.

On the issue of provider Approval process ICANN refers to two documents a GNSO survery taken 10 years ago and an “approval; proceess:” which is 13 years old.

Really?

Since then there have been tens of thousands of UDRP decisions and providers added and anyone that reads thedomains.com on a regular basis know there are bad decisions, overreaching panelist  and worse highly inconsistent decisions.

The inconsistent decisions is one of the major reasons fro forum shopping and several of the providers didn’t even exist 10 years ago when the last survey was taken

Maybe its time for a new survey guys.

 

 

ICA Tells ICANN The Draft Of RAA Agreement Is “Deficient in Scope”

The Internet Commerce Association  (ICA) submitted comments to the Internet Corporation for Assigned Names and Numbers (ICANN) website, on the current  draft  statement   of  Registrants’   Rights  and   Responsibilities  (RRR)  calling it “deficient in scope”.

“We prefer the alternate version proposed to ICANN by the Non­ Commercial  Stakeholders  Group  (NCSG) and propose  that a modified  version  of it be adopted   as  the  final   RRR said Phil Corwin in his letter to ICANN

“As  a  document   intended   to  provide   guidance   to  all registrants,  especially those lacking a sophisticated  understanding of their rights and responsibilities, it is important  that the RRR reflect  the input of registrants  represented by such entities as the NCSG and the ICA as well as of registrars.”

The  ICA  strongly  supports   the  concept  of  a  standard  statement   of  RRR  that  all accredited  registrars  must provide  a link to.

However,  the current draft RRR (available at http:1/www.icann. org/en/resources/registrars/raa/proposed-registrant-rights­ responsibilities-22apr13-en.pdf) is insufficient  in scope.

This deficiency  perhaps  reflects the  fact  that  it  was  drafted   by  registrars   without  input  from  registrants   or  entities representing them.

As an RRR starting point, we prefer the proposed draft submitted by ICANN’s NCSG on May  14,  2013  and  available   at  http://forum.icann.org/lists/comments-proposed-raa-22apr13/msg00010.html.

We have modified and added some provisions  of that draft-­ and have also included,  for the sake of comprehensive treatment  and balance,  some important provisions of the current registrar-developed draft RRR.

We would propose that ICANN adopt this modified RRR statement  in lieu of the current draft RRR; modifications  and additions to the NCSG draft are indicated below
Registrants’ Rights and Responsibilities

Registrants  of domain  names  depend  on the  DNS  to provide  stable  online  location­ pointers for their speech, association, commercial,  and non-commercial activities. Registrants  derive  rights  and responsibilities  from applicable  law as well as from  the web of ICANN-based  contracts  and relevant  policies.  As a matter  of policy,  ICANN should ensure that its contracts  and the parties bound by them can support  a wide range of lawful and innovative end-user activities and free and open communications.

Registrants shall have the right to:

• Reliable neutral resolution of registered domain names;

• No suspension or termination of registration without due, disclosed process;

•    Administration  of UDRP disputes  and other ICANN-adopted  rights  protection mechanisms  (RPMs)  in a uniform  and neutral  manner  by arbitration  entities that are effectively overseen by ICANN;

• Privacy in the provision and display of registration data;

·Fair and non-discriminatory  treatment from ICANN, Registrars and Registries;

•  No  censorship  of  domain  use,  content,  or  communications through  Registries  or
Registrars;

• Timely and secure transfer of registered domain names between Registrars;

• Renewal  (or  choice  not  to  renew)  domain  name  registrations  on  clearly  disclosed terms.

To not be subject  to false advertising  or deceptive  practices  by their Registrar or through any proxy or privacy services made available by their Registrar.  This includes deceptive notices, hidden fees, and any practices that are illegal under the consumer  protection  laws of the relevant  jurisdictions  of their registrar  or the registrant’s  domicile.

To accomplish that. registrants shall be entitled to accurate and accessible  information about:

• The identity of their ICANN Accredited Registrar;

• The identity of any proxy or privacy service provider affiliated with their Registrar;

• The terms and conditions under which Registrant information is revealed by a proxy or privacy service provider;

• The terms and conditions under which Requests are relayed to Registrants by a proxy or privacy service provider (without revealing of the identifying information);

• The Registrar’s terms and conditions,  including clear and conspicuous  disclosure of  pricing  information  and  other  key  terms  and  conditions,   applicable  to  both Registrar services and any proxy/privacy services offered by the Registrar;

• Clear and conspicuous identification of any changes to the Registrar contract and/or the terms of the proxy/privacy agreement, to which they will be held on continuation  or renewal of the domain name;

• Notice of the customer support services offered by the Registrar and its proxy/privacy service providers,  and how to access  them,  including  means  to raise concerns  and resolve disputes;

• Instructions that are readily understandable  and explain the Registrar’s processes for  registering,  managing,  transferring,  reviewing  and  restoring  domain  name registrations,  including  any  proxy/privacy  services  that  may  be  available  from  the Registrar.

Registrants have the responsibilities:

•     To comply  with  their Registrar’s  posted  terms  and  conditions  and  with applicable Registry and ICANN policies.
•     To assume responsibility for the use of their domain name.
•     To provide accurate WHOIS and other required information.

• To be contactable, to maintain current Registrar account data, and to respond to registrar  inquiries within  a reasonable  time; or to provide  an alternative  such  as allowing  the  registrar  to  suspend  registration  upon  an  unresponded-to  allegation  of abuse;

• Not to use the domain name for abuse of the DNS (to be defined more specifically: e.g.,  specific  DNS  attacks,  deliberate  malicious  distribution  of  malware,  or  criminal activity); and

• Not to commit intentional trademark infringement (“cybersquating as defined in the UDRP and enforced through it and other ICANN-adopted  RPMs).
Conclusion

The adoption of an RRR that provides a clear, comprehensive  and balanced recitation of rights and responsibilities is an important objective. Therefore, the current draft RRR should be replaced by an improved document.

We hope that ICANN finds our views useful Thank you for considering them in this important matter affecting the general  understanding  of the basic rights  and responsibilities of domain registrants.