Discussions at annual meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) in Costa Rica have been significantly dominated by the requests submitted by the International Olympic Committee (IOC) and the Red Cross and Red Crescent movement regarding the special protection of their names at the top-level domain name. This issue has actually been at the ICANN’s agenda for quite some time now, but it reached its pinnacle yesterday (March 14, 2012), when, at the request of the Non-Commercial Stakeholder Group (NCSG) the issue was deferred
, a move which meant that the Generic Names Supporting Organization (GNSO) Council was unable to vote on this issue. For many, this move signaled the end of ICANN, as we know it, an apocalyptic end to the Internet’s biggest investment – the new gTLD program.
Being present at ICANN 43 and a member of NCSG and of the Drafting Team that has debated on this issue, I feel the need to clarify some things. First of all, the world is not going to come to an end and the new gTLD program is not in jeopardy. It would be outrageous to even suggest that a process, involving a debate of more than six (6) years is dependent upon granting these special protections. This scenario would send a bad signal to the rest of the Internet world and its institutions as to where ICANN’s true priorities lie. And, the world is watching!
But, more importantly, one thing that needs to be made clear is that both these organizations are already ‘specially’ protected in this first round of the new gTLDs. According to the latest version of the Applicant Guidebook, the terms of the International Olympic Committee and the Red Cross and Red Crescent Movement “are prohibited from delegation as gTLDs in the initial application round”. This is clear. These terms are untouched and have been elevated to a completely different status, in comparison to those of other organizations, intergovernmental or not, that one can argue have a more significant mission, at least compared to the one of the International Olympic Committee. (Think here of UNESCO, WIPO, etc.)
Yesterday, the debate, however, was not about substance – it was about process. The reason NCSG requested the deferral was not about whether these organizations deserve these protections; the reason was simple: the public comment period for the Drafting Team’s recommendations is not over and, thus, the GNSO cannot come to a decision unless the public comment period has expired. It is actually surprising that the GNSO did not feel the need to uphold the public comment period, an issue that constitutes a paramount element within ICANN’s processes and is part of its Affirmation of Commitments mandate. Under the Affirmation of Commitments, the document that establishes ICANN’s bottom-up and transparent model, “ICANN commits to maintain and improve robust mechanisms for public input, accountability, and transparency so as to ensure that the outcomes of its decision-making will reflect the public interest and be accountable to all stakeholders”. In particular, ICANN is to achieve these set goals by “continually assessing and improving the processes by which ICANN receives public input (including adequate explanation of decisions taken and the rationale thereof)”. So, questioning the need for the public comment period to make its full circle by some members of the GNSO Council is what puts ICANN and its processes in danger; it is not the deferral, which is aligned with these very principles.
Plato famously said: “a good decision is based on knowledge and not on numbers”. For ICANN, this knowledge derives from public comments – public comments constitute the only way for ICANN to understand and learn the views of the wider community. So, the idea that we can circumvent such a pivotal process within the ICANN ecosystem and sacrifice due process in the name of speed is not only dangerous but it also sends a very bad message as to the democratic fractions that are supposed to be part of ICANN’s multistakeholder model.
Comments submitted by Dr. Konstantinos Komaitis regarding the “Proposals for protection of International Olympic Committee and Red Cross/Red Crescent names at the top-level”
I would like to thank the Internet Corporation for Assigned Names and Numbers (ICANN) for this opportunity to submit comments in relation to the “Proposals for protection of International Olympic Committee and Red Cross/Red Crescent names at the top-level” domain names.
First of all, I would like to mention that I am the current chair of ICANN’s Non-Commercial Users Constituency (NCUC) and one of the members of the Drafting Team (DT) that has submitted these recommendations for consideration by the wider Internet Community. In this particular instance, however, I am speaking in my own personal capacity as an academic and a Greek citizen.
My concerns over these recommendations relate to issues of process, substance and effectiveness. In particular, I feel that this whole process takes a path that goes contrary to the idea of the bottom-up normative assessment the ICANN community has strived to develop over the years and opens a Pandora’s Box with ramifications that will be impossible to reverse.
The primary flaw of this process that led to these proposals is that it has failed to distinguish between the requests made by the International Olympic Committee (IOC) and the Red Cross/Red Crescent movement and treat them as two separate issues. These are two organizations, which engage in completely different and unrelated activities, are currently being offered different levels of protection through traditional international and national legal instruments and their contribution to society differs significantly. In particular, the fact that the Red Cross/Red Crescent movement is involved in promoting and ensuring humanitarian relief in times of national and international catastrophes offers, at a preliminary level, a more sound foundation for the potential protection of its names and terms in the Domain Name Space (DNS); on the contrary, IOC is an organization, which receives a great amount of sponsorship deals which ensures “more than 40% of Olympic revenues”
(some of its commercial partners include SAMSUNG, COCA COLA, GENERAL ELECTRIC (GE) MCDONALDS, VISA and PANASONIC) and its role, albeit significance within the sports industry, should not be mixed with humanitarian or public interest values.
On the issue of process, it has been obvious that ICANN departed significantly from its long-fought and established bottom-up processes. ICANN’s Board decision to prohibit the “delegation [of these names] as gTLDs in the initial application round”
went against the bottom-up establishment within ICANN and undermined its main policy multistakeholder body – the Generic Names Supporting Organization (GNSO) Council. (At this stage, it is important to clarify that a decision has already been made concerning the protection of these terms in the first round). This new set of recommendations seek to go beyond and re-enforce the Board’s decision by creating a panoply of various protections and safeguards that, one can argue, re-interpret international law.
What is even worse is the unreasonable pressure that has been placed upon the Drafting Team to come up with these recommendations, which is manifested by the rush and the urgency of this public comment period and the likelihood that the GNSO Council may be asked to vote on this recommendation during the 43rd ICANN meeting in Costa Rica and only a week after the public comment period has opened. This means that the GNSO, when making its decision, will, most likely, not have the appropriate input of the community, within and outside ICANN; this is something that can potentially undermine any of its future work.
On the issue of substance the recommendation of the Drafting Team enters a dangerous territory. Under recommendation 1 - “Treat the terms set forth in Section 188.8.131.52.3 as “Modified Reserved Names
” – terms like ‘confusingly similar’ are vague, thus their meaning can easily be twisted, whilst there is also an obvious attempt to disincentivize even legitimate rights holders from engaging in any type of registration at the top-level name [paragraph c (ii) 3 of recommendation 1].
Even more problematic is recommendation 2, which seeks to re-interpret international Treaties and expand the rights traditionally afforded for these terms. This is particularly obvious in the case of the Olympic mark, which seeks to protect the names in multiple languages, including those of States that have not signed the Nairobi Treaty on the Protection of the Olympic Symbol. The Nairobi Treaty is the only standard that can be used by an international organization like ICANN in order to comply with the rule of law. ICANN is not a legislator and should not accept a ‘definitive list’ of languages that constitute an arbitrary compilation of national laws.
Finally, there is no clear justification regarding recommendation 3. Considering the novelty, the time constraints and the controversial nature of these recommendations, in the likelihood that these recommendations pass, ICANN should call for a review after the first round of delegation of the new gTLDs has occurred in an attempt to reassess them.
Considering effectiveness, these recommendations set a very dangerous precedent and send a bad message. Although reassurances have been made that this process is meant to address only the names of these two international bodies, it is the case that, should they be implemented, other international entities and institutions will have valid claims to demand the same levels of protection.
If pressure from these other international bodies intensifies, ICANN will have no option but to succumb. Accepting these recommendations leaves the ICANN community with no grounds against other international organizations and sets a dangerously flawed practice for the new gTLD program.
Being a Greek citizen, I am particularly troubled by the levels of protection these recommendations seek to provide to the terms ‘OLYMPIC’, ‘OLYMPIAD’ and their variations in multiple languages. Greece is the place that gave birth to the Olympic games and promoted the Olympic spirit that the world currently enjoys. The idea that the Greek community of Olympia (the place which marks the ceremony of the lighting of the Olympic flame) will have to ask permission from the International Olympic Committee to use a term that is part of its cultural heritage is highly problematic, illegitimate and goes against how the Applicant Guidebook views communities.
I hope the ICANN community takes a much closer look to these recommendations and think carefully about the potential multifaceted impact they may have.
Dr. Konstantinos Komaitis,
Senior Lecturer in Law  http://www.olympic.org/sponsorship 
184.108.40.206.3 of the Applicant Guidebook 
New generic Top-Level Domain Names (gTLDs) are all about innovation, entrepreneurship and creativity; they are about identifying new entrants, opening up competition and providing the domain name market with the opportunity to explore new means of interaction on the Internet. Equally, new gTLDs are a great opportunity for existing businesses and brands to reconsider their business practices and models and to adapt to new commercial realities and ideals. In both cases, however, it is important that some basic rules and principles are maintained so that terms are not abused, terms are assigned to their rightful owners and, where there are no rightful owners, a robust and fair process is in place to ensure that the assignment of words is done in a manner that does not endanger the Internet, does not confuse consumers or does not obstruct current societal structures.
I, for one, have been a proponent of new gTLDs from the early days of their policy development process within ICANN. I always believed that the existing gTLDs – and mainly the .com space – have created artificial scarcity, which is primarily responsible for much of the cybersquatting and the abuse trademarks experience. I do not share the same fears as those who argue that new gTLDs will create intolerable levels of cybersquatting or will necessitate defensive registrations from brand and trademark owners alike. As for the policy itself, I do not believe it is perfect and I feel that, for certain issues, ICANN could have taken a different direction, but, ultimately I recognize and respect ICANN’S multistakeholder governance structure and the decisions that have come out of it.
Lately, however, something has caught my attention, which can potentially create problems. Almost the same day ICANN opened up its application process, a tiny start-up was granted
by the United States Patent and Trademark Office (USPTO) a trademark for .bank (registration number 4085335). What is the problem with this? The problem is twofold: first of all, there is a general principle within traditional trademark law, which instructs that generic terms cannot be trademarked if they are to reflect what the term means. In this context, a company would not be able to register the word coffee and sell coffee. This would provide an unfair competitive advantage to any company and would, most likely, excommunicate all other similar companies selling coffee. Secondly, by granting this application, the USPTO is essentially leaving ICANN and its Governmental Advisory Committee (GAC) with a big problem. Part of the whole exercise regarding the role of the GAC within the new gTLD process related to the GAC’s role; this issue was resolved with the agreement that the GAC would be in the position to provide early advice to any new gTLD application, effectively giving the GAC the right to torpedo and determine the success of an application, which the GAC believes it raises issues of cultural significance or is contrary to national laws. To this end, it is exactly names like .bank that the GAC had in mind when they were pushing ICANN to insert this provision within the Applicant Guidebook: “[The GAC may advise] ICANN that there are concerns about a particular application ‘dot-example’. The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision”.
Now, with the USPTO granting trademark rights for .bank, this early warning mechanism becomes superfluous, and multiple rights are created for .bank. On the one side, there are the rights of the trademark owner; on the other, there is the GAC which believes that the term .bank is sensitive enough to interfere and whoever applies needs to go through a scrutiny process; and, finally, there is also the rumoured applicant of .bank – a joint effort made by the American Bankers Association (ABA) and BITS, part of Financial Services Roundtable. So, in practical terms, what the USPTO has essentially done is to provide the opportunity to an independent entity to object the application of .bank by asserting valid trademark rights.
So, this is a mess and a mess that will only get worse unless trademark offices around the world stop granting trademark registrations to .generics. The way things are right now, the GAC may sign off the .bank gTLD to ABA and BITS, but the owner of .bank will have valid claims to stop this application process or at least demand some sort of financial compensation for giving up the name to someone else. And, if he is really pissed off or he wants to retain .bank for his own personal use, he can then sue for trademark infringement. In any case, the trademark owner is the only winner here and both the GAC and the American Bankers should feel very pissed off with the USPTO. At this stage, the only solution is for the USPTO to accept that they screwed up and recall this trademark.
It is not a secret that I have been (and I continue to be) against
the requests made to ICANN by the International Olympic Committee (IOC) and the Red Cross for special protection of their names and their variations. I am mainly against because of the problems associated with these types of protection, the potential implications they may have and the fact that any attempt to reserve any names in the Domain Name Space will set a very bad precedent that will be detrimental to the whole new gTLDs experience. Well, the effect of this precedent is right upon us and, once again, ICANN is faced with a big challenge to find ways to accommodate the similar demands of intergovernmental organizations in the new gTLDs space. But, let’s take things from the beginning.
For quite some time now, ICANN has been subjected to a huge amount of pressure by IOC and the Red Cross to protect their names in the new gTLD program. This request, which was also vehemently supported by ICANN’s Governmental Advisory Committee (GAC), was meant to ensure that all the names associated with these two organizations (OLYMPIC, OLYMPIAD, RED CROSS, RED CRESCENT, etc.) are reserved under both the top level and second level domain names. As it normally goes, the justification is that these organizations constitute targets of cybersquatting activities, their non-profit nature (a point which is questionable given their involvement in multi-billion dollar licensing deals) does not allow them to spend money defending their brands as other purely commercial entities do and, in any case, such organizations should receive special treatment especially since Treaties and international commitments provide them with presumed privileges that could justify such levels of protection. Seeking a solution to this issue and given the pressure inflicted upon it, the ICANN Board agreed to initiate a process between the GNSO and the GAC on finding ways to address this issue; in the meantime, IOC’s and the Red Cross’s requests were accommodated – at least partially, as ICANN has committed to reserve their names in the new gTLD space but only for the top level domain names, stating, “the extraordinary step of blocking the requested names at the second level should not be taken as it would deny those with a legitimate interest or rights in registering those names at the second level, e.g., olympic.taxis and redcross.salt.”
I still think that this compromise is problematic and it is not because I don’t believe in the mission of these organizations or what they stand for. My problem is that these organizations are misusing trademark law and international Treaties to receive unprecedented levels of protection, especially when their names (in the case of ‘Olympic’ at least) conflict with other recognized rights, associated with traditional knowledge as well as cultural and geographical identifications. But, ultimately, it is the very dangerous precedent that such policy compensations set.
A recent letter
from a number of Intergovernmental Organizations “on the Expansion of Generic Top Level Domains” to ICANN is a case in point. Based on the justifications used by the Red Cross and the IOC, several intergovernmental organizations are requesting ICANN to afford them the same privileges as these two organizations. So, if with IOC and the Red Cross we were stuck between a rock and a hard place, now we are in real trouble. The problem is simple - the argument that all these organizations should be afforded special protection, despite the very valuable work they are doing, is weak and flawed. In the letter, the organizations state that measures to protect their names can “find support in international legal norms”, citing Article 6ter of the Paris Convention for the Protection of Industrial Property, Article 16 of the Trademark Law Treaty and Article 2 of the WTO Agreement on Trademark Related Aspects of Intellectual Property Rights.
It is indeed the case that all these statutes mainly reflect the need for the protection of these organizations; but they are equally being referenced quite widely. In particular, Article 6ter, para. 1(a) states: (a)
The countries of the Union agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as elements of trademarks
[emphasis added], of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view. And, para. 1(c) states: “The countries of the Union shall not be required to apply the said provisions when the use or registration referred to in subparagraph (a), above, is not of such a nature as to suggest to the public that a connection exists between the organization concerned and the armorial bearings, flags, emblems, abbreviations, and names, or if such use or registration is probably not of such a nature as to mislead the public as to the existence of a connection between the user and the organization
[emphasis added].” So, here we have provisions that commit to protect the names, abbreviations, flags, etc. of such organizations, but only in relation to trademarks. Neither of these statutes seeks to create or is willing to acknowledge special privileges like the ones being requested from ICANN.
But, the bigger picture here is the position that such pressures place ICANN. ICANN is not a trademark entity and was not created to confirm, amend or re-write trademark law. And, this is essentially what is being asked from ICANN - to interpret old Treaties into the realm of the Internet and, to do so, in a fashion that is not compatible with its governance structure. This is problematic.
It really took ICANN a lot of time to become a body that was not purely seen as a front for trademarks and their protection. The history of the organization is replete with examples of how the trademark lobby has used ICANN as the platform for many expansive policies. But, lately things have changed. For instance, the fact that ICANN resisted the adoption of the Globally Protected Marks List (GPML) is a credit to the organization, since its adoption would place ICANN as the new legislator of trademark law. The fact that such listed never existed and was requested by ICANN to do so is a clear indication of why ICANN should resist meddling with trademarks.
The current requests by all these organizations are not that far away from the GPML idea; they may not be asking ICANN to create something new or novel, but they are asking ICANN to interpret international law instruments and translate them into DNS language. This is not ICANN’s job and ICANN should refrain from engaging in such dialectic. Imagine, for instance, if the World Health Organization were to reserve its abbreviation ‘WHO’. With many existing entities making legitimate use of the word ‘WHO’, it would be contrary to existing trademark law for only one entity to use it. (Examples include the music band ‘The WHO’, ‘Doctor Who’, the biographical encyclopaedia ‘Who’s Who’, etc.). If ICANN complies with this request and continues to grant these privileges, it exposes itself to all sorts of problems. It is time we reconsider the way trademarks fit within the domain name space.
The US Senate Committee on Commerce, Science and Transportation Hearing on ICANN’s Expansion of Top Level Domain Names on December 8, 2001 was all about strategy. The strategy was simple: while the world has its attention turned to the debate on the copyright legislative proposals of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, let’s have another ICANN hearing and try to re-open trademark protection for new gTLDs. And this time, let’s have a different crowd submitting the testimonies: Mr. Dan Jaffe of the Association of National Advertisers (ANA); Ms. Angela Williams, of the Young Men’s Christian Association of the United States of America (YMCA); and, Ms. Esther Dyson, first ICANN’s chairwoman.
What was heard at the Hearing was not something inspiringly new: brands will suffer and consumers will be confused. A lot was said about defensive registrations, how the Internet is a scary place for trademark and brand owners, how there is a possibility that child porn will proliferate, how cybersquatters can ‘blow us up’, how law enforcement will not be able to do their jobs and how US senators may not be able to register their names. Innovation was questioned in a much unconvincing way and much was argued about the presumed lack of consensus for the new gTLD program.
The new twist in this Hearing was the participation of non-profits, through the YMCA, which was used by the trademark community as the new vehicle to air trademark concerns and as a further attempt to demonstrate that if these organizations’ brands are suffering, then this should be enough to put the new gTLD program on hold. This might have impressed the Senators at the Hearing but it, ultimately, is a really weak argument. Non-profits are not trademark maximalists, especially in the way trademark interests are represented at the ICANN level. Non-profits are entities that protect their marks (not brands), but following the underpinning principles of goodwill, consumer protection, competition, etc. associated with the mark and the services they provide. So, I am not sure whether the YMCA’s testimony represents an understanding for NGOs and non-profits outside the US; in fact I am pretty sure it doesn’t represent the views of many NGOs and non-profits in Europe and, especially, in the developing world.
On the other hand, ANA’s message was simple: the new program is a threat to companies and consumers and it should be stopped. ANA has been particularly involved in this process after the Special Trademark Issues (STI) team recommendations were released, which were based on a consensus that the trademark community did not agree with. This consensus was highly challenged by ANA, on the basis that, since it didn’t reflect the views of the trademark industry and some non-profits, it was illegitimate. No matter what one thinks about ICANN’s consensus policies, these have been in place for many years, a lot of work to more accurately define it has been done and continues at the level of the GNSO, they are part of ICANN’s ecosystem of procedures and, in many cases, have been instrumental in the trademark community winning many policy battles. So, the idea that this consensus is not working is mistaken: it just didn’t work out this time for the trademark crowd.
I was quite puzzled with Esther Dyson’s testimony, especially the part where she argued that “the process of consulting with the public hasn’t really worked” and that she was representing Internet users, who will be confused through this expansion. There are two mistakes Ms. Dyson made: through NCUC for example, users have participated in the process and, for instance, concerns of free speech and freedom of expression (that no one at the meeting even dared to mention) have been addressed to the fullest extent possible within a multistakeholder model. (The difference is that, contrary to other groups, these groups have accepted the results of such multistakeholder recommendations.) And, as for the argument that users will be confused through this process is really not working any more. Users have become more savvy than any other time; by now the majority knows how to use the Internet, what to suspect and what to avoid. The idea that we need stronger intellectual property protection for the users reflects a time when our parents and grandparents were not logging on to Facebook and they thought computers were aliens.
So, what one should take from this Hearing is that the people who actually have been involved in this process, Ms. Fiona Alexander from INTA and Mr. Kurt Pritz from ICANN, both celebrated and gave their vote of confidence to multistakeholder participation. They both correctly insisted on the fact that the new gTLD program was a consensus policy and that its language is an attempt to represent the multistakeholder environment of ICANN. They addressed how all stakeholders participated in the various policy groups and that, although work needs to be done, a lot has happened towards ensuring that ICANN’s work on the new gTLD program reflects its multistakeholder community in a transparent and accountable way. This is a very crucial point and Hearings like this one demonstrate how foreign multistakeholderism is for many US politicians. So, here’s a suggestion: if we wish to have Hearings like this one, let’s do so, at least with an understanding of how ICANN works, where we were and where we are now. Because it turns out that Hearings like the one of December 8, are not constructive at all; they are highly disruptive, in a time when ICANN should be focusing on finalizing and cross-checking everything in order to make sure that the January 2012 launch goes as smoothly as possible.
So ICANN 42 is over and it was, I think a great meeting. Senegal was a great host and the yassa chicken was delicious. There were some technical hick-ups, but nothing major enough to disrupt the ICANN-style debate. And, it was a pretty important meeting too. It was Dr. Crocker’s first meeting as the Board's Chair and he had to manage a Governmental Advisory Committee (GAC), which over the past year, in particular, had proven to become a threat to ICANN's miltistakeholder model.
And, there is not a more important time to preserve multistakeholderism! In a time where governments shut their ears to the rule of law, they give in to excessive lobbying and they appear to disregard processes based on checks and balances, ICANN (along with the IGF) are the only true and remaining environments that support multistakeholder governance arrangements. So, it was interesting to see how the relationship between Dr. Crocker and the GAC would play out. I think he did a pretty good job. He asserted his role without distancing the GAC or becoming their puppet. He has a technical background, after all, and he understands (perhaps better than the most of us) what the imposition of bureaucratic processes can potentially cause. But, that doesn't mean that he can make the GAC problem disappear.
The wish of the GAC to acquire a more decisive role within ICANN is getting more real and more threatening. The relationship between ICANN and the GAC has always been awkward, but became particularly problematic at the latest stages of the new gTLD program over intellectual property and competition issues. This time, although the tones were somewhat lower, they followed the same pattern of disruptive behaviour. The GAC had an issue with the way Registrars were not willing to implement a set of recommendations driven by the Law Enforcement Agencies (LEA). The Registrar community was not willing to accept these recommendations without initiating a Policy Development Process (PDP), a justification that left the GAC unimpressed and pissed them off.
Suddenly, Registrars became the most controversial group of ICANN 42. The GAC sought to recalibrate and assert its place by taking this issue straight to the Board, seeking to bypass the miltistakeholder model of the GNSO. This action by the GAC is problematic and manifests its inability to adapt to the new governance reality of the Internet. In general, governments find it difficult to accept that the processes have changed, having moved away from the bureaucracy associated with them; the decision-making process has been taken away from the hands of the governments. But, that shouldn’t mean, at the same time, that governmental input is not required. It does mean, however, that governments should accept the processes established by the community and participate ‘on an equal footing’.
In general, the ICANN community does a pretty good job in monitoring and fighting for the multistakeholder model. In contrast, it is the actions of the GAC that confuse and frustrate the multistakeholder community. Last year, this frustration had to do with the GAC's intervention on the trademark issues and its disappointing failure to support the multistakeholder model of the Special Trademark Issues (STI) team; in Dakar it was the GAC's wish to bypass the processes of the GNSO.
The GAC is proven to be a highly dysfunctional body. But, this follows the general pattern that governments have decided to follow in the context of Internet governance - a denial to see that they have entered an uneven battle with the Internet itself, its evolution and capabilities. The disappointing fact is that the GAC appears neither willing to adapt nor, at the very least, give a try to the multistakeholder model. It continues to adopt an arrogant attitude of superiority over ICANN although so far it has failed to provide good alternatives to the various issues; it continues to stall the various processes and create a negative environment amongst all ICANN stakeholders, who end up feeling de-valued; and, it continues to operate on what seems the position of a handful of governments
This latter issue is rather troubling. Although reassurances are made every time that the GAC position represents consensus, one cannot help but wonder how real a consensus this is. In the open sessions, many of the governments do not even speak; in some instances, GAC positions are drafted only by one government; and, unreasonable and mistaken requests are made to satisfy certain and known interests. For example, after the Registrars turned down the GAC's request and the issue was brought to the attention of the Board, the US Government made the following ridiculous suggestion, citing an unverified discussion, which took place at the ICANN meeting in Singapore and which suggested that something like 20% of Registrars may be bad actors. I was told in Dakar by some Registrars that this was not a statistical fact, but a random figure. Based on this abstract example, in Dakar, the US Government publicly demanded that ICANN de-accredits these 'bad actors'. Just like that - without proper evaluation, without the courtesy to request an investigation on the issue. This is a problem. The fact that Governments are making these suggestions without realizing the potential impact they might have, is – by itself – a testament to their ignorance.
So, here we are fighting for multistakeholderism and the ability of the community to participate, succeed, fail, get angry, get passionate, get active - in one word ENGAGE. The GAC may appear as a collective body right now, but this is because they all appear to fight for the same goal. I am wondering whether once they achieve to ascertain their control over ICANN, this collegiality will continue or whether (a most likely scenario) we will go back to a dysfunctional, intergovernmental structure that doesn't understand the Internet and is all about sovereignty and dirty politics.
Participating in ICANN, therefore, becomes crucial. And, ICANN should encourage this participation and seek to support those policy directions that are made by – and for – the community.
Non-Commercial Users Constituency Letter - To the Governmental Advisory Committee
September 28, 2011
Chairwoman of the Governmental Advisory Committee (GAC)
The Non-Commercial Users Constituency (NCUC) would like to take the opportunity to express its views in relation to the Uniform Domain Name Dispute Resolution Policy (UDRP). NCUC understands that the GAC has sent a letter to the Generic Names Supporting Organization (GNSO), raising some concerns as to whether a Policy Development Process (PDP) should be initiated in relation to a review of the UDRP.
NCUC would like to welcome the GAC’s initiative in approaching the GNSO and submit its statement with its views on the UDRP. NCUC thinks it is very encouraging that the GAC is willing to speak with the GNSO and exchange ideas on the UDRP, one of ICANN’s oldest and most important policies.
It has lately come to our attention, however, that the views of the GAC on the UDRP were drafted with the solicitation and advise submitted not by the entire groups represented at the GNSO Council. NCUC is very concerned with this process and would like to submit for your consideration the statement and the comments it has submitted during the public comment period for the UDRP. We hope that you take into consideration the indisputable evidence that exists and our serious concerns on the current operation and practice of the UDRP.
NCUC would like to thank you and the GAC for your attention to the NCUC's comments and requests the opportunity to discuss the issues related to the UDRP with members of the GAC at the meeting in Dakar. We look forward to cooperating with you on this very important matter.
Dr. Konstantinos Komaitis,
Chair of the Non-Commercial Users Constituency
Comments of the Noncommercial Users Constituency (NCUC) on the Preliminary GNSO Issue Report on the Current State of the Uniform Dispute Resolution Policy (UDRP)
UDRP review should be the presumptive outcome of this process.
NCUC supports a review and believes that the burden of proof is on those who oppose it. We believe so for the following reasons:
All other ICANN policies must be regularly reviewed and improvements continuously sought.
The UDRP has been in place for a long time, was put together very quickly in the earliest stages of ICANN’s existence, and has not been reviewed or modified since.
Many country code TLDs have instituted similar Dispute Resolution Procedures (DRPs). Although many are based in part on the ICANN model, they often introduce slight procedural or substantive modifications. ICANN needs to assess whether it can learn from those differing experiences.
A significant amount of academic research and critical literature has developed around the UDRP which can be assessed for problem areas and mined for proposals to improve it.
No stakeholder or independent commentator now claims that the UDRP is perfect. Virtually all of the panelists on the workshop held at the ICANN 41 meeting in Singapore and in the earlier webinar noted specific improvements or changes they would like to see, even if they did not prefer to invest time in a PDP.
NCUC believes that resistance to the policy’s review comes from two sources. One is a fear of various parties that a formal Policy Development Process (PDP) might make the policy “worse than it is now”. In response to that, we reply that a PDP does not presume that the UDRP will be changed; it simply allows all the Stakeholder Groups within ICANN to systematically explore and answer questions about whether it should be changed and if so, whether there is agreement on ways to change it. If there is no consensus among GNSO stakeholders about any specific change, nothing should change.
Another argument heard against a review is that the timing is bad. Some believe that the timing is bad because we are headed into the new TLD program, which relies on the UDRP and the Uniform Rapid Suspension (URS) policy, and that consideration of change will “destabilize” these efforts. Others believe that other policy-making activities should be prioritized. The first claim seems entirely illogical to us. The new TLD program will expand the usage of the UDRP and the URS will rely on certain elements of the UDRP. Moreover, the URS is designed upon the same substantive and procedural ethos of the UDRP; if the UDRP is not working, we need to ensure that we fix it so that its existing flaws are not transferred to and will not affect the operation of the URS. It seems that the time between now and the actual coming to market of new TLDs is the ideal time to review the UDRP and fix any flaws. Further, we simply cannot agree with anyone who sees the UDRP and trademark – domain name conflicts in general as a low-priority area for ICANN. The UDRP touches on issues that are central to ICANN’s mission and fundamental to the interests of nearly all of its stakeholder groups. If ensuring that the UDRP is functioning properly is not a priority, what is?
To conclude, regular review and updating of policies is often presented as an “ICANN value” or way of policymaking, and it would be terribly odd for that value to not apply to one of the only substantive policies that ICANN has created -one that impacts every domain name registrant. The presumption of any ICANN policy should be constant review and improvement and the UDRP is no exception to the presumption. After more than a decade of practice and evidence, this policy is beyond ripe for a review.
The Preliminary Issues Report
NCUC is not satisfied with the quality of the published GNSO Issue Report. We expect Issue Reports to involve the collection, compilation and analysis of relevant factual evidence, and a neutral and balanced assessment of relevant literature. The Report should be enhanced to take account of the factual evidence and analysis generated in the 12 years since the UDRP has been in effect, to provide the GNSO Council with informative background materials that can prepare it for policy discussions and debates.
Over the past twelve years, the UDRP has generated a significant amount of independent academic research and critical examination. There are also statistical sources available, both in the research literature and from the UDRP providers. If one uses focused search techniques and devotes two or three days to examining the most important materials, one finds about a dozen useful empirical studies and analytical law review pieces on the UDRP. These reports could have and should have been summarized and referenced in the Issues Report. While it does take time to sift through this material and glean its findings, the amount of time consumed would almost certainly be less than that consumed by organizing a “webinar” and a survey. Instead of webinars and surveys, that merely elicit opinions from the handful of people already involved in ICANN who happen to be available, a literature review considers the evidence amassed over time, and subject to peer and critical review. There is an important distinction between an internal opinion poll among insiders with an agenda and a fact-based Issues Report.
ICANN Issues Reports, and GNSO policy development processes generally, should not rely exclusively on casual internal soundings, but rather apply a higher intellectual standard and depth of understanding. If professionals, social scientists and researchers outside of ICANN have devoted resources and expertise to the analysis of ICANN and its policies, our processes can only benefit from drawing upon these materials. We note that the Security and Stability Advisory Committee (SSAC) reports routinely involve reviews of the relevant research literature and often do a good job of compiling and summarizing such literature. The GNSO needs to do the same. As the primary policy making arm for generic domains on the Internet, a higher level of analysis should be sought, as befitting its responsibility to good governance and the global public interest.
Summary of research literature
To aid the compilation of a more complete report, we list and provide brief summaries of the relevant research in the appendix to this comment. The sources are in chronological order. We ask that this information be incorporated into the revised Issues Report. The overview exposes a huge disparity between the Preliminary Issue Report conclusions and the conclusions of most of the research literature on UDRP. The preliminary report portrays the UDRP as completely consistent, fair and universally supported. Nearly all scientific reports, on the other hand, while noting the UDRP’s success at reducing the costs of resolving domain name disputes and rectifying gross forms of cybersquatting, tend to be critical of both substantive and procedural aspects of the UDRP. In other words, independent, neutral research does not support the preliminary report's assertions that UDRP is fair, consistent and in no need of review.
Helfer, Laurence R. and Dinwoodie, Graeme B., Designing Non-National Systems: The Case of the Uniform Domain Name Dispute Resolution Policy. William & Mary Law Review, Vol. 43, p. 141, 2001; Stanford/Yale Jr. Faculty Forum Paper No. 01-05. Available at SSRN: http://ssrn.com/abstract=275468
The article critically assesses the Uniform Domain Name Dispute Resolution Policy (UDRP) as a potential model for solving the legal challenges presented by transborder activity. It describes the conditions that led to the UDRP's formation and considers whether the UDRP can and should be replicated elsewhere. While authors believe that UDRP succeeded in bypassing cumbersome mechanisms of national and international law making and in fulfilling demand for effective dispute settlement, they do not believe that it should be uncritically extended to other contexts. This article contains no empirical or statistical analysis of UDRP results.
Mueller, M. (2001). Rough Justice: A Statistical Assessment of ICANN's Uniform Dispute Resolution Policy. The Information Society Volume 17, Issue 3, 2001, 151 - 163
A statistical analysis of UDRP case outcomes based on the concern that ICANN allows the complainant to select the dispute resolution service provider. The statistical tests indicate that complainant selection of dispute resolution service providers does lead to forum shopping that biases the results.
Geist, Michael (2001), Fair.com? An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP
This study finds that influence over panel composition is likely the most important controlling factor in determining case outcomes. Providers steer a majority of the cases toward complainant-friendly panelists. Fifty-three percent of all NAF single panel cases were decided by only six people, and the complainant winning percentage in those cases was 94%. Provider influence over panelists diminishes in three-member panel cases, 4
since both complainant and respondent choose one of the panelists and exercise some influence over the choice of the third; predictably, complainant win rates go down in three-member panels. The study concludes by proposing changes to the UDRP to instill greater fairness and confidence in the process.
Froomkin, A. Michael (2002), Uniform Dispute Resolution Policy—Causes and (Partial) Cures. 67 Brooklyn Law Review 605.
This paper describes the main features of the UDRP and ICANN’s accompanying rules of procedure and compares them to the recommendations of the WIPO proceeding and Report called for in the 1998 White Paper. The article documents four "unfair aspects of the UDRP rules:" (1) the selection and composition of the arbitral panel; (2) the failure to provide a registrant with adequate time to reply to a complaint; (3) the limited opportunity for complainants who lose a UDRP action to get their cases into court; and (4) the absence of any meaningful check on the providers’ creation of supplemental rules that effectively tilt the playing field. Notes that in practice, UDRP’s requirement that names be registered and used in bad faith “appears to have been completely lost on numerous arbitrators, who have read 'and' as if it meant 'or.'” Notes how the noncommercial use defense imported a tarnishment concept and that this "undermines a substantial part of the free-speech value of the non-commercial and fair use defenses" and "could be used to deny protection to legitimate criticism sites.”
Mueller, M. (2002). Success by Default: A New Profile of Domain Name Trademark Disputes under ICANN’s UDRP. http://dcc.syr.edu/PDF/markle-report-final.pdf
Study supported by the Markle Foundation based on a comprehensive review and classification of the first 4,000 UDRP cases. The UDRP has been an effective remedy for cybersquatting primarily because it makes it economically inefficient for abusive registrants to defend their names. Known cybersquatters default 70–100% of the time. The study’s compilation of case statistics provides many insights into the UDRP’s results. E.g., eighteen percent (18%) of UDRP claims are based upon unregistered trademarks; the UDRP has protected personal names as strongly as registered marks; of the 20 cases UDRP panelists cite as precedents most often, all were won by Complainants and all but 4 were Respondent defaults. The study further provides proof that decisions regarding gripe and/or criticism sites are inconsistent, and calls for clarifying standards for a finding of “confusing similarity” to a trademark such that criticism, parody and commentary are not suppressed.
Selby, John (2004). Competitive Justice?: The Role of Dispute Resolution Providers under ICANN’s UDRP, 1 Macquarie Journal of Business Law 23
Having examined the quantitative and qualitative means by which Dispute Resolution Providers can compete for market share in UDRP disputes, the main thesis of the article is that the requirement that "competition" between dispute resolution providers be a design principle in the UDRP was (and continues to be) flawed. Competition between 5
such providers results in flawed incentives and likely injustices, most notably it can bias those providers towards making it easier for complainants to achieve victory over respondents (particularly through panelist selection processes and differences between provider supplemental rules). Competition between providers of justice in a situation where they are competing for selection by only party is antithetical to the principle of equal treatment of parties in a dispute.
T. Lee, D. Hunter and D. Orr, "Cohesion and Coherence in the UDRP," (2008)
A study that tests the hypothesis that UDRP panelists are more likely to side with complainants or respondents who are of the same nationality as they are. The study used automated techniques to process UDRP decision documents to sample 2944 disputed domains where the nationalities of the panelist and both litigants were known. Based on this data, the hypothesis of a nationality bias appears to fail. However, the overwhelming number of Americans in both the respondent and complainant sample may limit the results’ generality.
Komaitis, Konstantinos. The Current State of Domain Name Regulation: Domain Names as Second-Class Citizens. Routledge, 2010.
Book-length analysis that argues that domain names are a form of property, and the property rights held by domain name registrants need to be recognized in law – independently of, and carefully distinguished from, the limited rights associated with trademark protection. The book discusses the history, legal basis, procedural aspects and performance of ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP). Analyzes the differences between arbitration and the UDRP, which is sometimes characterized as an arbitral process; most of the differences are shown to weaken the rights of registrants, binding them to a procedure and rules while allowing the complainant more choice and options. The book concludes with some procedural and substantive recommendations that, if applied, will help the UDRP to become a more fair and balanced system.
Substantive and/or Procedural Review of UDRP?
For NCUC, the key question is not whether to conduct a review of the UDRP, but rather, how to conduct a review of the UDRP. NCUC members agree that at the very least, a review of the noted procedural flaws of the UDRP should be thoroughly examined by the impacted community. A number of NCUC members further believe there should be an additional review of the underlying substantive policies contained within the UDRP, including their ability to protect freedom of expression guarantees and the fair use or other noncommercial rights of domain name registrants. Thus while the precise scope and framing of the UDRP review is open for discussion and input from all impacted stakeholders, NCUC contends that at the very least, a procedural review of the UDRP is necessary at this time.
Use standard ICANN processes, not a hand-picked group
Existing GNSO policy development processes are precisely what this type of examination was set up for and allows for balanced input from all impacted stakeholders. NCUC does not support having this process carried out by an arbitrarily selected group of “experts”. The GNSO was established for exactly this purpose and has put in place processes that provide room for multi-stakeholder participation and can reach results that reflect the views of all stakeholder groups within the ICANN structure. The community learned a valuable lesson with the failure of the single-constituency-driven Implementation Review Team (IRT), and created the subsequent Special Trademark Issues Team (STI), which reached unanimous consensus within the GNSO and drew much less criticism concerning issues of bias or misrepresentation, because it had incorporated members from across the community. We, therefore, suggest that ICANN make use of the existing GNSO processes that were established to evaluate policies and make recommendations as the community deems necessary.
Ever since the issue of a potential review of the Uniform Domain Name Dispute Resolution Policy (UDRP) was placed on the table, two camps were created: those advocating against a review – the Intellectual Property Constituency (IPC), some big brand owners and their lawyers and the UDRP accredited centers, who have been basing their arguments on issues of timing. Their main (and only) argument has been that a potential review of the UDRP would upset the current status in the adjudication of domain names and would create instability in the new gTLD environment. The other camp, the non-commercial users, have been advocating that the timing for a review is right, given the fact that the UDRP is one of the oldest ICANN policies and has been operating for more than ten years now. In the comments submitted during the public comment period, the Non Commercial Users Constituency (NCUC) outlined the academic research that has been conducted in relation to the UDRP, its process and its substance. For the past ten years, academic scholars, including myself, have indicated that the UDRP is in serious need for a review and that the system is flawed to the extent that it does not have any checks and balances, it is occasionally biased and it is procedurally flawed. These are not arbitrary accusations, but are based on extensive scholarly research and study.
The ICANN Staff Report
that came out in the beginning of August suggested against reviewing the UDRP, but the decision ultimately sits with ICANN’s Generic Names Supporting Organization. One thing that we need to understand, which might assist in also understanding why there is such a great upheaval when it comes to the UDRP, is that there are many interests at stake. The accredited centres do not want to see the UDRP reviewed because for them the adjudication of domain names has become a business. WIPO and the National Arbitration Forum have managed to generate a great deal of business from domain name disputes and many of their panellists have become quite comfortable in earning their living out of the UDRP. For the trademark community, the UDRP has provided the means through which they are able to exert their power over the domain name registration culture and, to a certain extent, control the ownership of names and words used in our everyday vocabularies. At the same time, through the registration of domain names, they have managed to receive international protection for their marks, something that they could not have achieved by following the traditional trademark registration channels. So, I do understand (although I don’t agree nor do I accept it) why these bodies are pushing ICANN not to initiate a PDP on the UDRP.
But, there is something that I do not understand. Only yesterday, a letter
sent by the GAC surfaced in the email list of the GNSO. According to the letter, the GAC is asking the GNSO not to proceed to a UDRP review at this stage. “The GAC is aware that the GNSO is considering initiating a Policy Development Process (PDP) for the purpose of reviewing the Uniform Domain Name Dispute Resolution Policy (UDRP). The GAC wishes to convey to the GNSO its view that a decision in favour of such a PDP at the time of launching the new gTLD program would have public policy implications of great concern to the GAC”. I have too many problems with this (initial) statement. First of all, I do not recall another time (and I might be mistaken) when the GAC has sent a letter to the GNSO asking for anything; doing it for the UDRP is quite alarming. But, more importantly, why the sudden interest? Considering that the whole issue of the UDRP started in May, why sent this letter now? The GAC did not participate in the UDRP webinar, did not participate in the Singapore UDRP panel session and did not submit any comments on the issue during the public comment period. Generally, I have never (and mean never) heard any of the GAC members talk or being concerned about the UDRP. So, why now? How did the UDRP become a priority of the GAC?
From what the letter states, it is because the GAC is concerned about the impact on 'public policy'. Yes, you have heard right - again the never-ending public policy argument. But, the idea that the UDRP should not be reviewed due to ‘public policy implications’ is as ridiculous as the idea of the UDRP being a fair system. First of all, this does not make any sense. What ‘public policy implications’ could a review of the UDRP create? Isn’t it a public policy issue the protection of free speech through clear provisions? Is it not an issue of public policy the need to provide to an international system of adjudication with clear checks and balances? These are quintessential issues that any democratic government should seek to protect. So, why doesn’t the GAC strive to secure these fundamental issues on the basis of public policy concerns? Well, the answer appears to be, because the letter did not come straight from the GAC. According to the meta info and the information retrieved from the properties of the word document, the letter was written by a trademark law firm – specifically the US based law firm of Covington & Burling. I am wondering whether the rest of the GAC is aware that their official position on a very important issue concerning the dispensation of rights between trademark owners and domain name holders is coming from a US law firm.
The rest of the letter follows more or less the same arguments we have so far heard from the trademark community: “The new gTLD program will see the introduction of several new rights protection mechanisms. The inevitable uncertainty associated with the introduction of these untested RPMs would be compounded if simultaneously the future of the primary, pre-existing and proven PRM – the UDRP – were also subject to uncertainty as a result of a long-running PDP”. I, personally, never understood this argument, no matter how much I have tried. But, let’s say that I am just dumb - in any event, the first step of a the PDP will not be to change the UDRP – it will be to ask the community to determine whether the UDRP needs to be reviewed. So, there is really no reason to panic or to make such extreme statements, seeking to spread unnecessary fear to the community.
Another interesting point in the letter is the following: “Further, the GAC notes that almost 50% of the country code top level domain (ccTLD) operators have either adopted the UDRP itself or a variant of it, such that any potential changes to the UDRP that could result from a PDP would potentially have broad implication beyond the remit of the GNSO”. Rubbish – even if we accept this figure, why make a review of the UDRP dependant on the stability of these processes? Needless to say that many of these ccTLD operators have taken the UDRP and have created much fairer and more balanced versions of it. Take, for example, NOMINET’s equivalent policy. It started as a copy of the UDRP, but it is currently a policy document that has managed to surpass the UDRP in many ways: it has incorporated clear safe harbour provisions and it has adopted an internal appeals process, providing this way a system with more checks and balances. (The STI actually suggested its safe harbour provisions based on NOMINET's wording). Why was NOMINET allowed to amend and create new provisions within its own body of rules and the UDRP is not allowed to do the same? Wouldn’t the GAC like to see a more balanced, better and fairer UDRP, especially since there is evidence that this can be achieved?
Therefore, this GAC letter to the GNSO only tells us one thing: the same way the trademark community used the GAC to channel its concerns on the STI recommendations, the same way it is using it now to prevent a potential review of the UDRP. But, whereas in the STI recommendations, the GAC had sort of made its own research and sort of knew what it was talking about, in this case the GAC appears clueless and it is embarassing. If the GAC knew the history, process and the various issues of the UDRP, it would realise that not reviewing it has public policy implications (to use their own language) that governments should be concerned with.
So, I would recommend the GAC to go back and read all the academic writing that exists and dates back to 2000. It is really an eye-opener and, in any case, it would help the GAC form its own conclusions and possibly write its own letter.
I would, first, like to take this opportunity and thank ICANN for issuing its preliminary Issues Report on the Current State of the UDRP and allowing a period for public comments. Having spent more than ten years observing the UDRP as a litigious machine, I believe that it is a system that has failed to evolve organically and to reflect the true value and potential of domain names. The UDRP is stuck to a microscopic view that sees domain names mainly as tools of trademark infringement, without making room for other uses, related to and recognized by trademark law itself.
Everyone will agree that the Uniform Domain Name Dispute Resolution Policy (UDRP) is a true phenomenon. It is a process that started more than ten years ago as part of the US Government’s White Paper mandate and has developed into a process that so far has adjudicated more than 30000 domain name disputes. This is both good and bad. It is good because it demonstrates the ability of the UDRP to operate in a fair, timely and cheap manner that eliminates jurisdictional issues. It is bad, however, because it has provided UDRP panels the ability to act as international arbitrators assigning rights of international recognition; it has allowed precedent to become an integral part of its processes and its rules have acquired a normative connotation, sufficient to provide the UDRP with an unprecedented authority.
All this is quite alarming considering that the UDRP was never meant to either transform trademark law or acquire the status it currently enjoys. Because of its current authority to adjudicate the rights of trademark owners and domain name registrants, it is vital we discuss and investigate the true efficiency of the UDRP and its ability to produce decisions that can be celebrated for their fairness, reasonableness, balance and legality. Currently, these values are highly disputed in the context and content of UDRP decisions.
First, it is important we clarify a big misconception: Contrary to what the Issues Report suggests, the UDRP was never a consensus document. This has been well documented by those who participated in the UDRP process ten years ago (See, A. Michael Froomkin, A Catalog of Critical Process Failures; Progress on Substance; More Work Needed, available at http://www.law.miami.edu/~amf/-icann-udp.htm (Oct. 13, 1999). Now, however, ICANN is presented with a unique opportunity to achieve the consensus that failed to achieve some ten years ago; ICANN is provided with the right set of circumstances to involve all its stakeholders and continue to support its multistakeholder, bottom-up policy formation. The precedent established by the Special Trademark Issus Team (STI) recommendation proves that policy, based on multistakeholder participation is feasible and it can produce valuable conclusions.
The Issues Report further calls the UDRP a fair system. This is not entirely true and a close look at the UDRP and its rules clearly demonstrates the fundamental unfairness of the mechanism. Take a look, for example, at the lack of clear fair use provisions and safe harbors; calculate the unreasonably disproportionate deadlines that exist for the complainant and the respondent; pay close attention to the bias that takes place even at the time of the center selection; and, notice how the UDRP has failed to account for registrants and users located in countries, where Internet connectivity is still at its infancy.
It has been asserted during the UDRP Webinar that the UDRP has been fluid and flexible to deal with issues, not foreseen back in 1999 (pay per click, pshising, mousetrapping). This is true. But, at the same time, the UDRP has failed dramatically to account for the major changes in user participation and behaviour through domain names. Innovators, bloggers, entrepreneurs, new businesses and their domain names are not included in the UDRP of 2011. Actors administering and using the UDRP have only focused on those acts that affect trademark owners; they have completely disregarded those acts that can be harmed by the strong protection of trademarks. You only have to imagine the scenario of some trademark owner, somewhere in the world, contesting <facebook.com> and you will understand the narrow view the UDRP takes in the protection of domain names.
The Issues Report suggests that “many [of the issues of the UDRP] relate to process issues associated with the implementation of the UDRP, rather than the language of the policy itself”. This is an extremely narrow interpretation. It is very difficult (and would be naive) to divorce substance from process not just for the UDRP but for any system of adjudication. Rules that are clear and coherent allow for a more efficient procedural environment; when the substantive layer is concise, the procedural level operates smoothly – and visa versa.
Another issue that is presented as contributing to the success of the UDRP is its consistency. I personally find this consistency troubling, mainly for two reasons: first, because it is confused with the fairness or success of the UDRP. Consistency proves nothing, apart from a system that is trapped in its own discretionary interpretations. And, second, it is the wrong kind of consistency. It is consistency of decisions rather than of rules. For example, the UDRP should aim for consistency in the way its rules are interpreted or the way the supplemental rules of its accredited centers are enforced.
It is important to stop considering the UDRP as a business-making machine. The UDRP was created to provide relief and not to create an extremely profitable industry in the adjudication of domain names. Given that the Policy assigns and determines rights on the Internet, it should be clothed with solid checks and balances and depart from its current modus operandi, which focuses primarily on creating incentives and using the UDRP rules to satisfy certain interests than delivering justice.
Undeniably, a review of the UDRP will not be an easy task – with more than 30,000 domain name disputes, a huge volume of documented decisions, and a lot of academic writing, the body of the UDRP is colossal. However, this should not prevent the UDRP from being reviewed; on the contrary, it is should be the catalyst for its review. The UDRP will only get bigger and its case law will become more complex. ICANN is presented with a great opportunity to start discussions, deliberations and put in place mechanisms that will allow the UDRP to be properly analyzed. A good starting point would be the existing academic writings, which have produced valuable and objective considerations.
By suggesting that the UDRP should not be reviewed, the ICANN Staff is making a big mistake. We made this mistake back in 2003, when discussions for a potential review of the UDRP were cut abruptly short. We should not repeat the same mistake. We should not let the fear of what the review might do to the UDRP, take precedent over the real need to review a policy document that is very old, in many cases is out of touch with the way domain names are used nowadays and is not inclusive of emerging Internet economies.
It would be a shame, if we were to let this opportunity for a proper UDRP review pass us by. ICANN has a responsibility to make sure that the UDRP, like any of its policies, is fair and represents the needs of all the parties that participate and use it.
Dr. Konstantinos Komaitis