ICANN Retreats on Opposition to Standard Contracts with UDRP Providers by Philip Corwin, Internet Commerce Association

Internet Commerce Association logoWhile it took three months, ICANN recently responded to the Business Constituency’s fall 2013 letter raising questions about the UDRP Status Report issued the day after the conclusion of the July 2013 Durban ICANN meeting. In a key clarification, ICANN’s response concedes that the Report does not predetermine the outcome of UDRP reform efforts slated to begin in spring 2015 — stating, “As with all PDP recommendations, ICANN would follow the Bylaws in how those recommendations are considered and implemented…the Status Report was not intended to cause any confusion or supplant any future community discussion on the issue of ICANN’s relationships with UDRP providers.”

Domain registrants have longed voiced concerns about the lack of adequate uniformity and predictability in UDRP decisions, as well as significant qualitative differences between the many accredited arbitration bodies. ICA has therefore long advocated that ICANN establish standard and enforceable contracts with all UDRP providers to ameliorate these concerns. ICANN’s Business Constituency, of which ICA is an active member, has reached a similar conclusion that standard agreements would be desirable for both trademark owners and registrants — especially as ICANN accredits new and untested regionally based arbitration organizations. The BC therefore posed a series of questions to ICANN about the Status Report in a letter sent on September 18, 2013, with a particular focus on the timing of the Report’s release, the lack of solicitation of public comment prior to its finalization, and its potential impact on future UDRP reform efforts (see internetcommerce.org/BC_Questions_UDRP_Report for background on and text of the BC letter).

ICANN’s full response is provided below; we are not fully convinced by ICANN’s explanation of the timing of the Report’s release, why the Report claimed that the URS was not based on a policy, and why a preliminary version of the Report was not put out for public comment. However, all that is water under the bridge at this point.

What we do find interesting and somewhat encouraging is that, while maintaining its curious position that establishing contracts with UDRP providers would impede ICANN’s ability to take swift corrective action against UDRP providers – something that ICANN has never done in more than a decade of UDRP practice – the response does back away a bit from staunch opposition to creating a standard contract. ICANN concedes that “a contract could be developed that would allow for flexibility in corrective action or graduated penalties” and adds “If ICANN were to see a great expansion of UDRP providers in the future, or if there were increasing need to take corrective action against UDRP providers, the development of a formal contractual regime may indeed become more advantageous than the system that exists today.”

Given its May 2013 accreditation of the Arab Center for Dispute resolution (ACDR) as a UDRP provider, the strong likelihood that additional regional providers will apply for similar approval, and the clear need for an enforceable framework to prevent a race to the bottom in UDRP practice, we believe those conditions will clearly exist when the GNSO takes up UDRP reform next year. ICA will continue to voice registrant’s concerns about the flaws in the existing system and keep on pushing for development of a standard contract.

Here’s the full ICANN letter—

December 19, 2013

Ms. Elisa Cooper

Chair, ICANN Business Constituency

Dear Elisa,

I write in response to the Business Constituency’s 18 September 2013 note regarding the “UDRP Providers and Uniformity of Process – Status Report” (Status Report) document.

The Status Report was produced as part of the Board’s consideration of the Arab Center for Dispute Resolution’s application to serve as an approved dispute resolution provider under the UDRP, which was approved on 18 May 2013. See http://www.icann.org/en/groups/board/documents/resolutions-

18may13-en.htm#1.d. The decision on the ACDR’s application was taken only after further public comment was received and analyzed, including the inputs from the BC. In its rationale for the resolution, the Board noted “the Board also requested that staff report to the community on how ICANN’s earlier consideration of UDRP provider uniformity issues was concluded. As a result, a briefing paper has been prepared and will be publicly posted.” The Status Report is that briefing paper. In fact, a draft of the Status Report was presented to the Board in advance of its decision on the

ACDR application and included in the Board Briefing Materials posted with the minutes of 18 May 2013. See http://www.icann.org/en/groups/board/documents/briefing-materials-3-2-18may13-en.pdf, at page 65-68. The Status Report was never intended to be a document similar to a GNSO Issue Report, for which public comment is necessary, as was suggested in your letter.

In response to the questions raised in your letter:

Question 1 – Contracting with UDRP Providers: Entering into formal contracts with the UDRP providers carries with it the formality of following all contractual obligations, including potential notice and cure requirements, as opposed to ICANN’s ability today to take swifter corrective action. The UDRP system to date has operated quite well without having formal contractual tools, and with very few (if any) substantiated reports of provider misconduct that require corrective action. While a contract could be developed that would allow for flexibility in corrective action or graduated penalties, the actual experience with UDRP providers to date does not necessitate the formal contractual development for which the BC seems to be calling. If ICANN were to see a great expansion of UDRP providers in the future, or if there were increasing need to take corrective action against UDRP providers, the development of a formal contractual regime may indeed become more advantageous than the system that exists today.

Question 2 – URS as Implementation of Policy Recommendations: The UDRP was developed through a formal policy development process. The Uniform Rapid Suspension System (URS) was developed as part of the implementation of the GNSO’s 2007 Policy Recommendations regarding the introduction of new gTLDs. ICANN agrees with the BC on this point. However – unlike the UDRP – the rules and procedures of the URS were not developed through a PDP. The Status Report was referencing the status of the URS itself – and not the policy recommendations underpinning the development of the URS – when indicating that the URS is not policy based.

Questions 3 and 4 – Timing of Publication/Availability of Public Comment: Because of the stated purpose of the Status Report, which was to provide an update on ICANN’s review of its relationships with UDRP providers, the document was never contemplated for public comment. Further, because of the informational status of the Status Report, and the fact that no discussion of the Status Report was anticipated at the Durban meeting, the timing of the posting of the Status Report was not considered to be linked to the Durban meeting. As seen through efforts such as the BC’s letter, the ICANN community always has the ability to raise concerns on this issue.

Question 5 – Impact on Future Policy Development Work: As the BC points out in its letter, the GNSO’s future work is expected to include an issue report on the UDRP 18 months after the delegation of new gTLDs. Issues relating to the UDRP provider approval process have long been contemplated as a topic for the policy development process, and were in fact included in the 2011 Final Issue Report on the Current State of the UDRP. See gnso.icann.org/issues/udrp/udrp-final-issuereport-03oct11-en.pdf. Policy recommendations regarding ICANN’s relationship with UDRP

Providers could be an outcome of that PDP (or one in the future). As with all PDP recommendations, ICANN would follow the Bylaws in how those recommendations are considered and implemented.

The Status Report could be considered as an input into the future PDP Working Group discussions if the Working Group wished to do so.

As discussed above, the timing of the publication of the Status Report was not intended to cause any confusion or supplant any future community discussion on the issue of ICANN’s relationships with UDRP providers. Instead, the Status Report represented the completion of ongoing work within ICANN. Thank you for reaching out for clarification on this document.

Best Regards,

Akram Atallah

President, Global Domains Division

This article by Philip Corwin of the Internet Commerce Association was sourced with permission from:
internetcommerce.org/ICANN_Response2BC_UDRP_Status_Report