ICANNstuff:URS

NCSG position:

Uniform Rapid Suspension System (URS)

➢ It is not a treatment of egregious cases, but an end-run about the UDRP.

A. Strips registrants of all rights and due process: 1. The standard is so lax; it does not rise even to the level of the UDRP. It loosens the criteria, stripping bad faith as one of the factors that need to be proven. 2. The change strips all domain name registrants of all rights – and all natural use of words and language. It will make it nearly impossible to register domain names in new gTLDs.

B. Does not focus on Serial Cybersquatting. At least in the case of serial cybersquatting, there is some evidence, on its face, of alleged bad faith.

C. Makes a huge deal of two irrelevant factors: 1. Standard of proof 2. No transfer of the domain name. This may be meaningful to the complainant, but it is completely unmeaningful to the defendant, the domain name owner. (I put that in order later to be seen as giving something away)

D. Completely forgets that Registrant Rights were a vital and integral part of the UDRP. No equivalent of Section 4(c) of the UDRP Policy is included – no explicit “rights of registrants” are in.

E. Fails to solve problems, which on their face are so huge from the UDRP, like forum-shopping.

F. Re-conceptualizes and expands on the interpretation of ‘default’. Default means that either of the parties fails to respond in a timely manner. Under the URS 6.1, default also means: If the Response is determined not to be in compliance with the filing requirements, default is also appropriate”.

Consistent with that idea, NCSG raises deep concerns with the URS, as proposed and as revised. It is:

➢ It gives overbroad rights to trademark owners, rights to basic words, names and places for which they have no similar rights in the real world; ➢ It is unfair to registrants; ➢ Assumes registrants are guilty until proven innocent; ➢ Allows trademark owners to make a range of unproven and unsubstantiated allegations without any penalty for error, inaccuracy or overstatement; ➢ It provides no fair right of response, no rights for registrants, no due process -- a confiscation of domain name property without due process or fair proceedings.

NCSG’s Principles:

• Due Process
• Assumption of innocence and good faith
• Right to respond
• Something inexpensive (and fair) for small noncommercial TM holders

[to pursue]

• Clear definition of egregious conduct
• High burden of proof
• Registrant rights

Uniform Rapid Suspension [edit at will]

Procedural framework:

• Complaint (1 page, prescribed form?)
• Notice to Registrant (20 days, by [UDRP] means)
• Response (1 page)
• Evaluators (provider, panelists)
• Standard of review
• Evaluation
  • in case of answer
  • in case of default
  • counterclaim for abuse of prcess
• Decision
• Reopen a default judgment
• Appeal an adverse decision

Common Ground Paper:

Here are key elements from the Common Ground paper. In many cases, they were created to translate our NCSG principles into words, and details, that the STI can evaluate and adopt. Some, of course, come from other groups:

Purpose: Garden variety Cyber squatting with no genuine contestable issue, clear and convincing (clear-cut) cases of infringement NCSG idea: possible, but only if fair notice is fair and at least 20 days, process and appeals provided, and forum shopping completely eliminated.

De novo Appeal & Sanctions

NCSG Idea: Appeals must be allowed for a) review on the merits, (b) questioning the impartiality or abuse of discretion of the Examiner, (c ) abusive Claim by the Claimant, and (d) Perjury by the Claimant (lying about facts; lying about TM rights). Appellate Panel should be a 3-Judge Panel comprised of a rounded group of experts: a Fair Use Attorney; an Academic in this Field; and a TM Attorney

Real Sanctions! Sanctions by Appeals Panel: • One finding of perjury (lying to the tribunal) and the Claimant, and its related entities, are barred from the URS process. • Two findings of abusive Claims and the Claimant is barred from the URS process for a period of multiple years. • Three findings of abuse of discretion (or perhaps merely 3 reversals) and the Examiner is removed.

Panellists / dispute resolution providers – randomised and no choice of which to be available to Complainant to avoid overzealous TM holder gaming.

In case Panelists overtuned multiple times, they lose their right to be panelists!

Notice time must be increased from 14 to 20 days (UDRP timeframe)

Modes of Notice must include email, fax, hardcopy

Upon a Successful Decision by a Complaint, option to transfer Domain Name for a fee ==> This is Not a point NCSG has agreed to, but we will be asked to consider it.

Complaint and Answer must be similarly limited (and perhaps formulaic): Limited Complaint with website attachment; Limited Response with website attachment for both sides/ Kathy thoughts: Forms may be helpful here; but not to replace textual comments completely.

Reviews of the URS at regular intervals Yes Review at 6 months, 12 months, 18 months and a GNSO sunset provision (to properly bring everything into the PDP process). Kathy thought: let's ask Mary and Bill to draft an iron-clad way to make the GNSO Council review this process -- and Sunset it -- in a given period of time (2 years?)

Mandatory or Optional?

[please note that if you put hyperlinks in here, the wiki URL will show up in referer logs]