[council] UDRP Motion and Thoughts on the Friendly Amendment from the RySG

["Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>]

All,

As you are aware the following motion is currently on the table:

Original Motion

Whereas the Registration Abuse Policies Working Group submitted a final report 
the GNSO Council on 29 May 2010 (see 
http://gnso.icann.org/issues/rap/rap-wg-final-report-29may10-en.pdf), 
recommending an issue report on the current state of the UDRP considering both
(a) How the UDRP has addressed the problem of cybersquatting to date, and any 
insufficiencies/inequalities associated with the process, and
(b) Whether the definition of cybersquatting inherent within the existing UDRP 
language needs to be reviewed or updated, and
Whereas, on February 3, 2011, the GNSO Council requested an Issues Report in 
accordance with the recommendations of the Registration Abuse Policies Working 
Group (http://gnso.icann.org/issues/rap/rap-wg-final-report-29may10-en.pdf) and
Whereas, a Preliminary Issue Report was published on 27 May 2011 
(http://gnso.icann.org/issues/prelim-report-current-state-udrp-27may11-en.pdf) 
and series of webinars and workshops were held soliciting public comment to 
allow for the ICANN community to provide feedback on the analysis and 
recommendations contained therein, and
Whereas, a Final Issue Report was published on 3 October 2011 
(http://gnso.icann.org/issues/udrp/udrp-final-issue-report-03oct11-en.pdf) in 
which ICANN staff recommended the GNSO Council consider the "perspective of the 
majority of the ICANN community, and the advice of the Government Advisory 
Committee (GAC), and the At-Large Advisory Committee" and that "a PDP be 
delayed until after the New gTLD Uniform Rapid Suspension System (URS) has been 
in operation for at least eighteen months. . . [to] allow the policy process to 
be informed by data regarding the effectiveness of the URS, which was modeled 
on the UDRP, to address the problem of cybersquatting."
RESOLVED, that the GNSO approved the initiation of a PDP and the establishment 
of a Working Group on recommendation #7 of the IRTP Part B Working Group 
concerning the requirement to lock a domain name subject to UDRP proceedings, 
which the GNSO Council at its meeting on 22 June 2011 received and agreed to 
consider when it takes up consideration of the Final Issue Report on the 
Current State of the UDRP.
RESOLVED further, the GNSO Council requests a new a new Issue Report on the 
current state of all rights protection mechanisms implemented for both existing 
and new gTLDs, including but not limited to, the UDRP and URS, should be 
delivered to the GNSO Council by no later than eighteen (18) months following 
the delegation and launch of the first new gTLD.

Proposed Friendly Amendment
David Taylor, on behalf of the IPC has proposed a friendly amendment that would 
substitute the following for the last paragraph:

RESOLVED further, the GNSO Council requests a new Issue Report on the current 
state of all rights protection mechanisms implemented for both existing and new 
gTLDs, including but not limited to, the UDRP and URS, should be prepared with 
staff commencing the drafting of this report eighteen (18) months after the 
publication of at least a 100 UDRP or URS that cover at least 10 new gTLDs. 
Such report should be delivered to the GNSO Council within four (4) months of 
that trigger date.


RySG position on proposed Amendment
As currently drafted, the RySG would not accept the amendment as friendly.  The 
RySG believe that it has already compromised in agreeing to delay the PDP for 
18 months after the launch of the first of the new gTLDs and increasing the 
scope to cover all trademark rights protection mechanisms.  This was precisely 
what the GAC, ALAC, IPC & BC asked for during the public comment period on the 
Preliminary Issue report.  This already delays the full pdp for 3.5 years from 
today.  This is because we believe the first new gTLD will not launch until Q1 
2013.  18 months from then is Q3 2014.  That is when a Preliminary Issue Report 
will be put out for comment.  By the time you get a Final Issue Report (after a 
public comment period, staff analysis, etc.), and a vote to approve a PDP by 
the Council (including possibly 1 deferral), we are talking about late Q1 or Q2 
of 2015.

The proposed amendment would delay the full PDP by at least another year (4.5 
years from now).  The rationale is that the first gTLD will not launch until Q1 
2013 at the earliest.  We estimate that it will take 6 months to get at a 
minimum to get 100 decisions in both the UDRP and URS.  That brings us to Q3 
2013.  18 months from the publication of 100 decisions in each is Q1 2015 at 
the earliest.  4 months from then is Q3 2015 and that is only for the 
preliminary issue report.  A 30-45 day public comment period, plus analysis, 
debates, etc. makes the delivery of the final issue report at Q1 2016 and a 
vote by the Council (with deferral) at q2 2016.

We believe that much delay is too long.  Although the registries understand the 
IPC's view that there should be a number of URS decisions before commencing the 
evaluation, the original concept was to just look at the UDRP.  In order to 
compromise with the IPC and the GAC, the RySG agreed it should cover other 
trademark RPMs as well for new gTLDs.  Now, that we agreed to expand the scope, 
the IPC is using that compromise to ask for further delay.  Had we known that 
when we initially compromised to cover the additional topics, we may not have 
agreed to increase the scope or we would have separated the motion out to call 
for the UDRP review within 18 months and a later time period for the rest of 
the RPMs.  Not to mention that the Affirmation of Commitments calls for a 
review of new gTLDs (which I am sure will also look at RPMs) within 12 months 
of the launch of the first new gTLD.  So whether the data is there or not, 
ICANN will be evaluating the new RPMs before we commence our PDP on them.  
Finally, we believe that a Preliminary Issue report can be written before a 
full set of data is available.  It would just be identifying the issues at the 
time.  If additional issues come up or more data comes in, that can be looked 
at by the Working Group at that time (assuming a PDP is commenced).

We are now asking the entire Council to come together and compromise.  The NCSG 
and certain members of the contracted parties house are not happy because they 
want to commence the PDP on the UDRP right away (at least with respect to 
certain topics) and the CSG wants to delay the PDP even further to ensure we 
have the full set of data. Each side has very legitimate arguments.  No one is 
right or wrong and no one is completely happy.  Perhaps that is why the RySG 
believes this motion strikes the appropriate balance :)

I hope this note helps and we will discuss further during the meeting.


Jeffrey J. Neuman
Neustar, Inc. / Vice President, Law & Policy
21575 Ridgetop Circle, Sterling, VA 20166
Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / 
jeff.neuman@xxxxxxxxxxx<mailto:jeff.neuman@xxxxxxxxxxx>  / 
www.neustar.biz<http://www.neustar.biz/>
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