Phil Corwin of the Internet Commerce Association (the “ICA) just published a post, sounding a very loud alarm, to head off what would be the first step that would make all .Com domain name subject to the Uniform Rapid Suspension Policy (URS) which allows “trademark holders” to go after domain names.
To remind everyone the URS which is only in effect for new gTLD’s is now being proposed in the new contract for the .Travel Registry which is not a new gTLD but an incumbent Top Level Domain like .com, .net and .org.
Under the URS a “trademark holder” can file a cheap complaint, much cheaper than a UDRP and get a decision within generally two weeks rather than a few months. A domain holder hit with a URS cannot ask for a three member panel and are great restricted as to the length of the response they can file. While a UDRP can cost a “trademark holder” $1,500 to file a case plus a few thousand in attorney fees, a URS is around $500 and can include multiple domains and since it’s basically filed on a form, the time it takes a trademark holder or their attorney to file and plead a case is literally just minutes making the attorney fees a fraction of the cost of prosecuting a UDRP.
If a Complainant wins a URS they don’t get the ownership of the domain like the do in a UDRP but the domain registration is suspended. The domain owner cannot use the domain for the length of its registration, nor can the domain owner renew the domain. So if a domain holder loses a URS the domain will delete at the end of its registration term. It might go to the domain name registrar and be sold off at some point as one of its assets or drop and go to an auction.
Simply put ICANN is trying to add the URS to the .Travel Contract.
If ICANN gets the URS added to the .Travel contract they will get it added to all legacy TLD’s as their contracts come up for renewal.
The .net contract is up for renewal in 2017.
The .Com contract is up in 2018.
Here is a portion of what Mr. Corwin wrote in his post:
“”On May 12th ICANN posted the “Proposed Renewal of .TRAVEL Sponsored TLD Registry Agreement” for a period of public comment ending June 21st.
The current Registry Agreement for .TRAVEL, like other registry agreements, provides for presumptive renewal so long as certain requirements are met. It also provides that upon renewal, changes may be made to the terms of the Agreement.
The proposed draft RA for .Travel includes this provision:
Dispute Resolution Mechanisms. Registry Operator will comply with the following dispute resolution mechanisms as they may be revised from time to time:
… the Uniform Rapid Suspension system (“URS”) adopted by ICANN (posted at http://www.icann.org/en/resources/registries/urs), including the implementation of determinations issued by URS examiners. (Emphasis added)
This is top-down, staff-driven policymaking at its worst and is thoroughly unacceptable.
It would make all domains at .Travel, a legacy gTLD and not a new gTLD, subject to URS, which is not a consensus policy applicable to all gTLDs.
To that end,
It appears that ICANN staff, on its own initiative and with no advance consultation with the community, are attempting to impose an “implementation detail” for the new gTLD program into a legacy gTLD renewal contract.
That would effectively convert the URS into a consensus policy without any community discussion of whether it should be, and set a precedent that could bring the URS to .Com, .Net, .Org and all other legacy gTLDs as their own RAs come up for renewal.
It was well understood at the time that the Rights Protection Mechanisms (RPMs) were debated and created for the new gTLD program’s Applicant Guidebook that they were to be regarded as “implementation details” for the new gTLD program and not as “consensus policy” applicable to all gTLDs.
ICANN is attempting to preempt that entire consensus policy discussion by imposing the URS on an incumbent gTLD.
However this very important decision is one for the entire community to make after informed discussion, not for ICANN staff to make in a manner that preempts the discussion–
We need to review the actual performance of the URS, including the quality of arbitration decisions.
We need to see if it is going to be materially changed in any way – especially if it is going to be altered to include a domain transfer option, which could convert it into a $500 vehicle for domain trolls to attempt abusive domain hijacking.
And, most important, we have to understand how well it meshes with any contemplated changes in the UDRP, since the receipt of the RPM Issues Report may well kick off a policy development process (PDP) on UDRP reform as well.
ICANN needs to hear from the global Internet community, in significant volume, that imposing the URS on an incumbent gTLD is unacceptable because it would mean that ICANN staff, not the community, is determining that URS should be a consensus policy and thereby undermining the entire bottom-up policy process.
Domain suspensions are serious business – in fact they were at the heart of the SOPA proposal that inspired millions of emails to the US Congress in opposition.
This is clearly an issue for domain registrants – registrants at new gTLDs knew that their domains were subject to the Trademark Clearinghouse claims notice system and the URS, but registrants at incumbent gTLDs have never been subject to URS and should only become so if the community decides it should become a consensus policy.
But this should also be an issue for every other ICANN stakeholder and global domain registrant who wants to hold the line against staff-driven usurpation of the community’s right to initiate and make policy decisions.
So get your comments in by June 21st if you want to see the community remain in control of this key policy decision rather than have ICANN staff determine it via private contract negotiations. ICA will be commenting against including the URS in this RA, but we need lots of company.
Here’s what to do:
Prepare a comment to ICANN and send it to email@example.com by June 21st. Your comment can be in the text of the email or attached as a Word, PDF, or similar document type. A draft comment template is provided below that you can use as is or modify to reflect your personal point of view.
Besides sending your own comment, contact at least two other individuals who you think are opposed to having ICANN staff use the contracting process to put the URS in place at incumbent gTLDs, provide a link to this ICA post, and ask them to submit their own comments as well. And ask them to do the same to ensure maximum input to ICANN. And it wouldn’t hurt to also contact other trade associations and public interest groups as well as spread the word on social media.
This initiative can be stopped – but that will be best ensured if ICANN gets lots of comments that oppose including the URS in the .Travel RA.
Act now or be prepared to see the same tactic used to impose the URS on .Com, .Net, .Org and other incumbent gTLDs. Don’t complain then if you’re not willing to take a few minutes and speak up now.
And here’s that draft template for comments:
I am writing in regard to the Proposed Renewal of .TRAVEL Sponsored TLD Registry Agreement issued for public comment on May 12, 2015.
I am strongly opposed to the inclusion of a modified version of the new gTLD rights protection mechanisms in Specification 7 of the proposed RA, especially Uniform Rapid Suspension (URS).
All the new gTLD RPMs were implementation details of the new gTLD program and are not ICANN consensus policies applicable to all registries and registrars. The URS can become a consensus policy only after a full policy development process (PDP) engaged in by the entire ICANN community of stakeholders. The ICANN community has not even received the new gTLD RPM Issues Report that staff will be providing to the GNSO in September 2015.
Imposing URS on an incumbent gTLD via the contracting process is an absolutely unacceptable staff intervention into the policymaking process. Approval of this draft contract would constitute top-down, staff-driven policymaking in direct violation of ICANN’s stated commitment to the bottom-up, private sector led policy development process.
Therefore, the .Travel renewal RA should be referred for Board consideration only after Specification 7/URS has been removed from the agreement, along with all other provisions derived from the new gTLD RA that are not established consensus policies applicable to incumbent gTLDs.
Thank you for your consideration of my views.
[Name, title, organization]