[registrars] Proposed Uniform Dispute Policy

[JIMBRAMSON@aol.com]

Attached is the most recent revision of the Domain Name Dispute Policy 
prepared by AOL and register.com.  The new draft reflects the significant 
input we've received during the past few weeks, including at the WIPO 
sponsored meeting in DC two weeks ago.

Our objective in this process has been to develop a policy that will be 
voluntarily and uniformly adopted by registrars.  We have relied considerably 
on WIPO's proposed policy, but this policy does differ in some respects 
(e.g., there is no exclusionary rule).  

The current draft no longer includes a number of provisions (such as 
disclaimer and indemnity provisions) that seem better placed in the 
registration agreement, which will likely be different for each registrar.  

The proposal also does not contain "procedural" requirements for dispute 
resolution, which will be contained in the "rules of procedure" to be 
attached to the policy.  The proposed policy allows the registrars to 
"authorize" dispute resolution service providers of each registrar's choice.  
Our hope is that all such providers will employ uniform "rules of procedure." 
 (Such rules still need to be prepared. WIPO has moved this process along 
considerably, but I'd be interested in hearing from anyone who cares to 
contribute to developing a set of uniform rules.)

Our handling of several issues that were frequently cited in the comments we 
received is as follows.  

1. Revocation at Registrar's Discretion

    Some of the comments we received expressed concern over the provision 
allowing registrars to revoke domain name registrations at their discretion.  
On reflection, it does not seem that this provision is appropriately placed 
in a dispute policy in any case.  A registrar who wishes to keep such 
flexibility in its relationship with customers would include the provision in 
the registration agreement. 

2.  Administrative Proceedings

    A point of confusion in our last draft was the "binding" nature of the 
administrative proceedings -- i.e., whether the results of such proceedings 
would be binding on the disputing parties and what role the courts would or 
should play in such disputes.  In the current draft, the decisions of an 
administrative panel are "binding" on the disputants in that the decisions 
will be followed by the registrars.  However, either party may submit the 
dispute to a court of competent jurisdiction for an independent, de novo 
review of the dispute (or go to court before the initiation of an 
administrative proceeding).  The draft policy includes a 7 day waiting period 
before a registrar implements an administrative panel's decision, in order to 
give a disappointed registrant the opportunity to go to court and challenge 
the decision.  

3.  Administrative Panel Standards

    Several comments suggested wording changes to the scope of the disputes 
that are subject to the mandatory administrative proceeding.  This issue was 
a heavily disputed issue during the WIPO reporting process and is being 
addressed in the DNSO process.  To minimize the need for re-creating those 
processes, we have elected to track the exact language of the WIPO proposal 
given the care with which WIPO drafted the scope of the mandatory proceedings.

4.  Transferability During a Pending Dispute

    There were a number of comments expressing concern about whether a domain 
name should be transferable to a new registrant or between registrars during 
a pending dispute.  The proposal is that a name may not be transferred to a 
new registrant during a pending administrative proceeding (in order to avoid 
transfers intended to evade an adverse decision) or during a pending court or 
arbitration proceeding, unless the new registrant agrees to be bound by the 
decision in such proceeding.

    The proposal does not limit the ability to transfer a name among 
registrars during a pending dispute, so long as the new registrar has a 
policy honoring the decision in the pending proceeding under the originating 
registrar's dispute policy.  This approach conflicts with the "Exhibit B" 
transfer protocol distributed by NSI this week.  While we think the free 
portability of domain names between registrars is the preferred approach -- 
both for competitive and logistical reasons -- in any case Exhibit B and the 
registrars' dispute policy will need to be consistent on this point.

5.  Preliminary Determination

    An earlier draft policy included a "preliminary" determination as to 
whether a complaint meets the pleading requirements of the policy.  This 
provision has been removed from the policy, since it is an issue we think is 
more appropriately dealt with in the "rules of procedure."

We thank all those who have contributed to this effort.

Jim Bramson
Counsel
America Online, Inc.

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