The Czech Arbitration Court is suggesting what in essence is a UDRP amendment

Following the really bad precedent set by the World Intellectual Property Organization (WIPO) on the proposal for a fast-track UDRP process, the Czech Arbitration Court (CAC) has proposed changes that in essence amend the substantive and procedural rules of the UDRP. The Non-Commercial Users Constituency has submitted the following comments:

December 11, 2009

Dear ICANN Staff,

The undersigned members of the NCSG STI Drafting Team submit that the request from the Czech Arbitration Court (CAC) cannot be granted at this time for the strongest of procedural and substantive reasons.

1. The ICANN public notice for comments has misled the ICANN community and the public. This is not a mere change to supplemental rules for a mere alternative page limit. This is the adoption of an “Expedited Decision” analogous to the URS system, recently created by the STI. In October, the ICANN Board sent the URS back to the GNSO because **expedited decision making processes involve substantive rights and must be subject to the procedures and policy-making processes of the GNSO and its Council.*** The same concepts, and requirements, apply here.

2. There is nothing supplemental or merely procedural about these proposals. These proposals involve substantive change which will limit the rights of domain name registrants. As the just-completed STI URS recommendations show, expedited decision-making processes bring to bear serious and important issues of fairness and due process. The URS drafting team found that defining the elements of the UDRP claim precisely – and with the clear inclusion of safe harbors (the URS’ modelled on the Nominet example) constitute critically important factors in a rapid decision-making process.

Further, as the STI agreed, rapid reviews, especially in the case of defaults, should include additional procedures to protect and benefit the domain name registrants who may not even know the UDRP or URS proceedings are taking place. Such protections were placed into the STI’s just-completed URS -- but could not have been seen by the CAC which requested its recommendations (modeled on the IRT Report alone) prior to the results of the Board-requested STI work).

3. The UDRP is meant to be a uniform system and CAC’s amendment will operate against that uniformity. CAC is suggesting changes to create new substantive language that is not in conformity with the original scope of the UDRP. The uniformity of the UDRP is based on all UDRP providers conducting the same type of substantive review. The CAC new process breaks this uniformity seeking to create a whole new mechanism.

Thus, the CAC proposal raises serious competition concerns. It is unfair that one UDRP service provider should move forward with an advantageous new process that may lure complainants away from other forums. The UDRP was meant to be a uniform system, and accordingly, rapid decision rules, as they apply to existing gTLDs, must take place through the GNSO and apply equally to all providers.

4. The CAC proposal certainly will impact non-commercial and free speech domain names. As the CAC proposal does not include safe harbors for domain name registrants, its proposals do not include the balance of fair use and due process which constitute the basis of the newly-formulated and newly-recommended URS.

5. Further, the new CAC proposal is premised on inaccurate assumptions about default and domain names – to the substantive detriment of good faith domain name registrants. The CAC proposal presumes bad faith at default – despite the very short timeframe for notice and response that have characterized the UDRP since its outset (a timeframe far faster than court, and even than most administrative proceedings). The CAC proposals undercut the basic fairness of the UDRP, and the fairness and balance of the newly-introduced URS.

Overall, CAC is an accredited ICANN UDRP provider and should comply within a specific mandate. Despite CAC’s effort to present these changes as part of its supplemental rules, in reality they are substantive and will affect the future of the UDRP.

Such a submission, particularly by a UDRP provider so new to the UDRP process (in operation for only a year) and taking place while the URS was under serious consideration and substantive re-evaluation, will be viewed by all as unauthorized, unfair and seriously flawed.

Going Forward:
At a minimum, ICANN must reissue the comment period with a public notice that puts the public on notice that real rights – registrant rights – are being impacted under the UDRP pursuant to the change of policy being proposed by CAC.

The far better answer is for ICANN to strongly urge CAC to return to ICANN after a full review of the new URS. As the URS Drafting Committee, the STI, found and the UDRP Final Drafting Team before it, Registrants are entitled to the protections, fairness and due process. The STI 's URS came through a GNSO policy-making process. In addition, the URS proposal offers a heavily researched, carefully written and painstakingly edited rapid decision process from an expert and diverse group of trademark attorneys and technical experts representing Trademark Owners, Registrants, Registrars, Registries and individuals. It is a balance that adds to and rounds out the IRT recommendations, on which the CAC proposal was narrowly based.

The URS text, and its process of creation, should help inform and guide the CAC rapid decision process.

Overall, the procedural and substantive proposals suggested by the CAC must be legitimate revisions to the UDRP. These changes, and all major changes in the UDRP procedures, must be a part of ICANN’s bottom-up policy process undertaken through ICANN’s Policy Development Process (PDP).

Whatever happens next, this proceeding, as designated, must not continue. Suspending this proceeding for further work will benefit the entire ICANN community -- trademark owners, registrants, individual, registrars and registries, and CAC.

It also will serve the integrity of the ICANN process, and the UDRP, with a full and fair process.


Very sincerely yours,




Kathryn Kleiman, Esq.
NCUC Co-Founder, US Trademark Attorney, UDRP Drafter & URS Drafter

Dr. Konstantinos Komaitis,

URS Drafter and author of the book “The Current State of Domain Name Regulation” (University of Strathclyde)

Robin D. Gross, Esq.

Chair of NCUC, IP Justice Executive Director, and URS D

STatement on the ICANN NCUC's Charter Proposal

Wednesday, July 22, 2009

Individual Statement on ICANN NCUC’s Charter Proposal

Dear ICANN,

It is with great disappointment to see the ICANN Board suggesting a structure for the Non-Commercial Users Constituency (NCUC), which is a result of top-down rather than bottom-up coordination. I am also dismayed by the fact that NCUC was the only constituency having been asked to amend its charter so as all other constituencies within ICANN did not feel threatened by the support NCUC has been receiving over the years. Why else would you ask NCUC to amend a charter that has been signed and supported by approximately 80 organizations and individual users across the five regions of the world?

The new model you have suggested is highly problematic and you know it. It is as if ICANN wishes to create within NCUC – the only non-commercial constituency within ICANN able to preserve human rights and non-commercial interests – an internal conflict, which will, subsequently, disunite its members. The strength of the NCUC is that, despite the fact that sometimes we may share different priorities and approaches, in essence, we – as one, conjoined unit, advocate and support the same philosophy: the protection of non-commercial interests on the Internet. We are the civil society in ICANN and our job is to promote the needs of individual users, as expressed by themselves and their representatives. What we all share in common in NCUC is that we want to balance the influence of commercial interests within ICANN and engage in an active dialogue with the other constituencies. We want to find the best possible solutions for the Chinese blogger who fights for his voice to be heard, the child who is daily exposed to various illegal Internet activities, the parents who are concerned about their children – we are here to talk about all those people who should be our first priority – the simple Internet user. The charter we originally proposed would ensure that all voices within the NCUC would be heard; our charter promoted transparency and dialogue; it sought to bring together than distance our philosophies – isn’t that what democracy is all about?

You have to understand that our vision for NCUC is not driven by commercial interests and monies. We have tried to come up with the most democratic solution that will represent and respect the views of all parties concerned. And, I believe we have achieved it. Look at the support that our charter has received – you cannot possibly overlook that. We are reasonable and our proposals are equally reasonable. The fact that they do not conform to other interest groups within ICANN is unfortunate but, at the same time, it is not a legitimate justification for rejecting and re-writing our proposed charter.

I strongly urge you to re-consider the benefits of NCUC’s proposal. Rejecting our proposal will result in transmogrifying a constituency, currently operating under democratic and just procedures, into a body, where lobbying will proliferate. The way you have envisioned NCUC, we will have to spend all our efforts in political manoeuvring rather than in tackling contentious and fundamental issues that are of great concern to all of us. We can really help you, if you let NCUC and its members continue to do their jobs with the same passion and principles.

Thank you.

Sincerely Yours,

Dr. Konstantinos Komaitis,

University of Strathclyde (Law School),

Member of NCUC.

Internet Users Are Being Threatened: The IRT Meeting in London

I’ve just returned from ICANN's new gTLD meeting in London, where the Implementation Recommendation Team (IRT) presented its skewed vision of protection mechanisms for new gTLDs. London was the second stop of a consultation process, which started in New York and will finish in Abu Dhabi in the beginning of August (http://www.icann.org/en/topics/new-gtlds/consultation-outreach-en.htm). The idea behind these consultations, which are open to every interested party, is to give the opportunity to the IRT team to present its recommendations and receive comments. But, in reality, things are far from simple.

The report - both procedurally and substantively - has a lot of problems and legitimizing it will be a difficult task (even for ICANN). Taking into consideration that the composition of the IRT consists mainly of lawyers of big corporations (Time Warner, Richemont), the report will inevitably be biased towards trademark interests. And, it is. Hearing the IRT team talking about the report, there were times that I almost believed they are fighting a larger cause. Their language was careful, their wording well-articulated and they had the ability to answer almost every question. This to me meant only one thing: if one is not familiar with what has been happening over the past ten years, one could easily support the report.

Presumably, this was a new strategy. After a tough New York meeting two days earlier, where many voices attacked both the report and the IRT team, in the London meeting you could see that they have learned their lesson. Their presentations finished with the concluding remarks that the report does not reflect ICANN and is not meant to be a solution (rather it seeks to open the discussion); they often repeated that the team was not given enough time to prepare its recommendations and submit its findings. We all realized that after New York the team was trying to tone things down a bit.

At the same time, however, the IRT team did not back off from its main argument that trademark interests should be of primary concern with the introduction of new gTLDs. Sentence after sentence they were arguing how much trademark owners suffer from bad registrants. I don't think they acknowledged at all that not all registrants are bad. I felt that the team used the most extreme of examples to convince the public that the IRT report is a good piece of policy that needs to be implemented.

And, to a certain extent, their plan did actually work. For example, if you are a parent and you hear that there are domain names promoting child pornography, of course you are going to applaud their work. But, no one really told these people that these constitute criminal activities and can be dealt in other forums; no one really said that trademark owners are not concerned about child pornography, but, in reality, they want to control words, phrases, terms and any linguistic activity that resembles their mark on the Internet; no one really mentioned that many trademark owners suppress free speech on the basis that the domain name is 'harming' their trademark.

Finally, after the long presentation by the IRT, the community was given opportunity to comment. I reiterated NCUC’s position that the IRT Recommendations are flawed and should not be implemented. There were also some excellent comments heard from Paul Keating (trademark lawyer) and Richard Tindal (from the well-known registrar, eNom) on the problems of the IRT report and its biased character.

One of the things that I realized is that we really need to inform the simple Internet user, the registrant, anywhere in the world, about what is happening and what the IRT team is trying to push forward. We need to make them see how they will be affected by this trademark invasion and how the DNS will be in jeopardy of losing its all-inclusive character and become a space reserved for trademark rights.