ICANN/DNSO

August 3, 1999

Ms. Esther Dyson, Interim Chairman of the Board

Mr. Michael Roberts, Interim President and Chief Executive Officer

Internet Corporation for Assigned Names and Numbers (ICANN)

4676 Admiralty Way, Suite 330

Marina Del Rey, CA 90202

Dear Esther and Michael:

In accordance with the Resolution adopted by the Interim Board of ICANN in Berlin on May 27, 1999, charging the ICANN Domain Names Supporting Organization (DNSO) with the task of submitting its recommendations with respect to Chapter 3 of the WIPO Final Report and a Uniform Dispute Resolution Policy (UDRP) for registrars in the .com, .net and .org TLDs, to the ICANN Board; and pursuant to the authority vested in the Provisional Names Council (pNC) of the DNSO by the further Resolution adopted by the Interim Board of ICANN in Berlin to the effect that the Names Council representatives chosen by the provisionally recognized Constituencies shall constitute the provisional Names Council, with all the powers set forth in the Bylaws other than the selection of Directors (pursuant to Section 2(e) of Article VI-B of the Bylaws), the pNC of the ICANN Domain Names Supporting Organization (DNSO) makes the following submission to the ICANN Board as a result of the study conducted by Working Group A (WG-A) on Chapter 3 of the WIPO Final Report (and associated Annexes) and the pNC vote on WG-A's Final Report dated July 29, 1999.

The pNC Vote

The pNC voted pursuant to Article VI-B, Section 2 (d) of ICANN's Bylaws on the Final Report of WG-A (posted at http://www.dnso.org/dnso/notes/19990729.NCwga-report.html) on July 30 to August 3, 1999. The vote is publicly archived and may be accessed at http://www.dnso.org/votes/v ote01/Archives/.

The ballot allowed pNC members to submit dissenting opinions in support of a vote against any or all of the recommendations in the WG-A Final Report, and these opinions are attached hereto as part of the supporting documentation following the pNC recommendations below. (They may also be accessed in the vote archives at the site given above).

The electorate consisted of eighteen pNC members. The results of the vote are as follows:

Fifteen pNC members participated in the vote in time for the August 3, 1999, 9:00 EST deadline. A sixteenth member voted after this deadline had passed, and two members did not vote.

Ten members voted in favour of submitting the whole report to the ICANN Board without reservation. The pNC member who voted after the deadline also favoured the submission of the whole report.

Three further members voted in favour of submitting the whole report, but expressed partial dissenting opinion.

Two further members voted in favour of submitting some recommendations, but not others, as detailed below:

-Recommendation 1) -fourteen eligible votes in support, one late vote in support, three partial dissents,

- one vote against;

-Recommendation 2) - all fifteen eligible votes in support, one late vote in support, four partial dissents and/or comments;

-Recommendation 3) - all fifteen eligible votes in support, one late vote in support, three partial dissents and/or comments;

-Recommendation 4) - all fifteen eligible votes in support, one late vote in support, five partial dissents and/or comments;

-Recommendation 5) - thirteen eligible votes in support, one late vote in support,

- two votes against

In sum, more than two-thirds, of the pNC voted to forward the set of recommendations contained in the WG-A Final Report to the ICANN Board as a community consensus recommendation.

Accordingly, the consensus of the pNC seems to be in favour of the WG-A Final Report, but with the overall caveat that the shortness of time available to WG-A to solicit input from the DNSO constituencies, as well as lack of input from the General Assembly (GA) leaves a question as to what the consensus of the DNSO really is. As noted in the WG-A Preliminary and Final Reports, WG-A was asked to complete its work within an expedited time-frame, beginning at a time when the pNC lacked a full complement of members and the administrative / procedural framework for WG activity was not developed. This latter process is still ongoing. In addition, a very limited number of comments were received from the GA during the RFC period in which the WG-A Preliminary Report was posted for public review and discussion (at http://www.dnso.org/dnso/notes/19990707.NCwga-report.html).

WIPO's RFC process, which took place over a ten-month period, involved extensive international consultation and RFCs that were not possible in the few weeks allotted to WG-A. The WIPO Final Report may be considered to represent a consensus of most interested stakeholders. WG-A was aware of this fact and took it into account in its own consultation process and in the preparation of its Preliminary and Final Reports. ICANN is therefore encouraged to consider the dissents to WG-A's recommendations in light of both the WG-A process and the more extensive WIPO consultation process, and to decide whether these dissents are relevant in this context to the course of action ICANN determines it should take.

It is the opinion of the pNC, as expressed in the vote, that the ICANN Board of Directors adopt the following recommendations, giving effect in that way to the White Paper requirement that the Interim Board consider "as soon as possible" the recommendations on dispute resolution policy arising from the WIPO process. This is especially relevant, and urgent, at a time when, following Amendments 11 & ff to the Co-Operative Agreement, and the subsequent Registrar Accreditation Program, a number of accredited registrars need assistance and guidance on these issues before entering the gTLD domain name registration market and turning it into a competitive one.

WG-A's Recommendations to ICANN Respecting the Implementation of the WIPO Dispute Resolution Process

1) Generally, the recommendations of Chapter 3 of the WIPO Report relating to Uniform Dispute Resolution Procedures (UDRP) should be put into place as soon as possible after the ICANN Board meeting in Santiago, Chile, subject to recommendation 4) below, and all Registrars should be required to adopt a UDRP, namely, that recommended by WIPO, until such time as ICANN decides that it should be replaced.

The DNSO recommends the adoption and implementation of a uniform Dispute Resolution Policy. Such DRP should be uniform across current gTLDs, approved by ICANN and implemented on a gTLD-wide level in a uniform way.

Uniformity should affect both material or substantive rules as well as procedural rules with an effect on substantive rights of the parties. Some minor, administrative, differences could be implemented in procedures followed by different UDRP Service Providers. In this regard we recommend that ICANN establish an accreditation process for DRP Service providers based on objective criteria, and that all accredited DRP Service Providers should be incorporated by the Registration Authorities in their Domain Name Registration Agreements with registrants.

For at least the balance of 1999, this UDRP should apply only to bad-faith / abusive domain name registrations (cybersquatting) on a mandatory basis, but without precluding the parties' ability to litigate the dispute. Further, once proof of litigation is submitted to the WIPO panel, it should immediately cease its decision-making process pending the outcome of the litigation. However, in response to a number of procedural and substantive concerns raised during WG-A's consultation process, it is recommended that WIPO be requested to clarify the following issues listed below, and that its recommendations and conclusions in relation to these issues should then be put back before ICANN for evaluation by way of this, or another WG established for this purpose, for a two week period, before being implemented. However, this should not delay implementation of the WIPO UDRP:

Establishing a "user's guide" to the arbitral process, possibly to be tested on focus groups prior to widespread implementation of the WIPO UDRP;

b) The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from "appealing" the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report;

The need to re-examine and possibly refine the procedural timetable with respect to notice of commencement of proceedings and the prescribed period in which to submit a response. While the notice provisions should not be substantially changed or the response time extended at this time, it is recommended that WIPO be asked to develop criteria for reasonable grounds upon which an extension of time for response may be requested by the registrant;

In response to the need to clarify the arbitrators' duty to ascertain the applicable law in a dispute and to apply it, WIPO should be asked to consider the development of an independent set of rules for the UDRP that is not based on civil or common law, and that does not rely on any existing statute or body of national case law;

The need to more clearly articulate the standard of proof in paragraph 171 of the Final Report, and associated sections of Annexes IV and V.

It is recommended that early in 2000 *, WIPO should be asked to provide a timetable in which it can make available its UDRP with an adequate number of arbitrators from a number of different countries who speak a cross-section of languages, trained in online arbitration, making it possible to offer these dispute resolution services on a voluntary basis to disputants having trade-mark / domain name disputes. It is recommended that such voluntary dispute resolution shall not preclude access to courts unless both parties to the dispute contract out of such access, in which case the results of the online dispute resolution process will be final and binding.

* WG-A Co-Chairs Note: The insertion of the 2000 time frame was one point where there was a lack of unanimity among the members of the pNC. Even though the specific date was approved by the requisite majority, it is felt that the recommendation may be amended in accordance with the expressed concerns to replace the 2000 time frame with "as soon as ICANN considers it reasonable and practicable" without materially altering the underlying substance of this recommendation. The original intent was to allow for a period of time after implementation of the UDRP during which its operation could be evaluated and any shortcomings addressed. Based on this experience and any required modifications, the UDRP could be expanded to non-cybersquatting type disputes on a voluntary basis.

Respectfully submitted:

Members of the pNC.

JCC/AA/VC

Supporting Documentation

In further accordance with Article VI-B, Section 2 (d) of ICANN's Bylaws, the following materials and information about the WG-A process are provided to assist the ICANN Board in its review of WG-A's recommendations:

Final Report of WG-A Page 7

Dissenting Opinions from the Vote of the pNC Page 13

Comments to the Preliminary Report RFC and Final Report Page 16

Report on the Formation of WG-A Page 17

Personal Comments from Jonathan C. Cohen, Co-Chair of WG-A Page 22

A) Final Report of WG-A

WG-A's recommendations, along with explanatory commentary are contained in the following authoritative text of the Final Report of WG-A to the Names Council, which was considered by the pNC for its vote on July 30 - August 3, 1999 and posted at http://www.dnso.org/dnso/notes/19990729.NCwga-report.html. WG-A Co-Chairs note: this document was posted before certain housekeeping changes were made to the text. These amendments are reflected in the text below. Any discrepancies between the posted text and that below should be resolved in favour of the latter.

We encourage the ICANN Board to review the full Final Report, as well as the report on the formation of WG-A set out in section C) below, in order to understand the context in which its recommendations (and the dissents thereto) are made.

WG-A Final Report to the Names Council - July 29, 1999 - REVISED DRAFT *

Introduction

The preliminary report of WG-A was posted on July 8, 1999 for public comment after approximately three weeks of consultation. At the time the preliminary report was released, the point was made that this time frame was very short in relation to the breadth and complexity of the subject matter. It was also noted that the scope of consultation and ability of people to participate was affected by the time given to WG-A in which to prepare its report.

The RFC period for the WG-A preliminary report was approximately two and a half weeks, with submissions invited to be posted on the General Assembly (GA) list, the WG-A list or the list for WIPO comments, all of which were accessible from http://www.dnso.org. WG-A notes that the number of comments received was very limited, and this could be due to the short time period available for the RFC process mandated by the deadline for submission of the Names Council's report to ICANN by July 31, 1999. Of the few comments received, it is noteworthy that the submissions by Professor Michael Froomkin represented a detailed and thoughtful analysis, and have been of considerable assistance to WG-A in formulating these recommendations to the Names Council.

While some commentators have suggested areas where the WIPO process may be refined, nothing has been said that differs significantly from the conclusions drawn in the preliminary report, namely that the WIPO Uniform Dispute Resolution Process (UDRP) should be implemented on a mandatory basis in respect of disputes involving "cybersquatting" or "abusive / bad-faith" registrations.

Further, although there are legitimate concerns about expanding the UDRP to other types of disputes on a voluntary basis until such refinements to the process have been made, there was no argument presented that would militate absolutely against such eventual expansion, provided that the disputants' recourse to the courts was not precluded.

WG-A's Recommendations to the Names Council:

1) Generally, the recommendations of Chapter 3 of the WIPO Report relating to Uniform Dispute Resolution Procedures (UDRP) should be put into place as soon as possible after the ICANN Board meeting in Santiago, Chile, subject to recommendation 2) below, and all Registrars should be required to adopt a UDRP, namely, that recommended by WIPO, until such time as ICANN decides that it should be replaced.

2) The DNSO recommends the adoption and implementation of a uniform Dispute Resolution Policy. Such DRP should be uniform accross current gTLDs, approved by ICANN and implemented on a gTLD-wide level in a uniform way.

Comment: This uDRP is to be viewed as an alternative to litigation, as a fast, inexpensive and Internet-friendly alternative (at least in relative terms) to wordlwide legal systems and jurisdictions.

The main goals of such a uDRP would be increasing legal certainty, providing a solution in cases where multijurisdictional conflicts prevent actual court-based dispute resolution and prevent forum shopping. In this regard it is viewed as an alternative, not a substitute for Court litigation, which should remain open to the parties.

Even if the DNSO remains open to consider gTLD-specific DRPs, or variations thereof for future for certain new gTLDs in light of possible specific uses, characteristics or charters, we recommend a uniform DRP across the current three gTLDs regarding both their undifferentiated use and the nature of the DRP being recommended. Moreover, such a uDRP should be more than a series of similar or even identical policies proposed by each registrar, a gTLD-wide (or, in the current situation, a registry-wide) DRP approved by ICANN

3) Uniformity should affect both material or substantive rules as well as procedural rules with an effect on substantive rights of the parties. Some minor, administrative, differences could be implemented in procedures followed by different uDRP Service Providers. In this regard we recommend that ICANN establishes an accreditation process for DRP Service providers based on objective criteria, and that all accredited DRP Service Providers should be incorporated by the Registration Authorities in their Domain Name Registration Agreements with registrants.

Comment: Neither registries nor registrars should be involved in actual administration of such policy. In this regard we believe that ICANN should accredit DRP Service providers among specialized dispute-resolution institutions, according to a set of objective criteria. Both material, substantive, rules and the procedural ones that affect substantive rights of the parties (deadlines; notifications; etc) should be uniform. But some room could be open for differentiation in some procedural rules such as language; fees; and other administrative aspects.

4) For at least the balance of 1999, this UDRP should apply only to bad-faith / abusive domain name registrations (cybersquatting) on a mandatory basis, but without precluding the parties' ability to litigate the dispute. Further, once proof of litigation is submitted to the WIPO panel, it should immediately cease its decision-making process pending the outcome of the litigation.

However, in light of the procedural and substantive concerns enumerated below that have been expressed by Respondents to the WG-A RFC process, it is recommended these concerns should be referred back to WIPO for its reconsideration for a short, thirty day period. WIPO should be asked to call for an expert group of arbitrators and IP practitioners to work with it on an urgent basis to clarify the procedural implications of these concerns. WIPO's recommendations and conclusions in relation to these issues should then be put back before ICANN for evaluation by way of this, or another WG established for this purpose, for a two week period, before being implemented. However, this should not delay implementation of the WIPO UDRP.

The concerns which have been identified as lacking in substantive specificity or adequate procedural safeguards, and which should therefore be revisited by WIPO include the following:

a) The desirability of establishing a "user's guide" to the arbitral process, possibly to be tested on focus groups prior to widespread implementation of the WIPO UDRP, in view of the fact we have no meaningful experience to date with international online arbitration from which to seek guidance on questions such as: how arbitrators are to make credibility determinations based on paper records, which are possibly generated by parties who may be presenting their case in a language other than their own; how to deal with situations where one party is represented and the other is not, a party fails to frame its case properly or does not have sufficient resources to do so.

WG-A considers that this point is well taken, however we suggest that we may rely to some degree on the experience of WIPO in multi-national, multi-lingual dispute resolution. Nonetheless, WG-A supports in principle the idea that the implementation process should include as a prerequisite, the request to WIPO that it consider the formulation of such an arbitral "user's guide".

b) The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from "appealing" the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report.

One suggested solution to this problem which WG-A agrees merits further consideration, is the requirement that a complainant enter into a contract with the registrant (or the arbitral institution in a jurisdiction that recognizes third party beneficiary agreements) as a condition of initiating ADR, that provides for consent to be sued in the jurisdiction where the registrant is ordinarily resident, and in the jurisdiction where the subject registrar is located (assuming both parties do not agree to voluntarily contract out of the right to subsequent litigation).

c) The need to re-examine and possibly refine the procedural timetable with respect to notice of commencement of proceedings and the prescribed period in which to submit a response.

The potential for unfairness, or abuse of WIPO's rules governing notice and time for response include the following:

date of commencement of proceedings is the date on which the arbitration service provider receives the complaint, rather than the date of actual or constructive notice of the complaint by the registrant;

ten day period within which a response to a notice of proceedings is to be filed and the possible difficulties such a short time period may cause a registrant in finding representation, collecting evidence and preparing the defence;

absence of any requirement on the part of the complainant to contact the registrant prior to filing its complaint, or to allege such contact.

WG-A agrees that these are valid concerns, but does not at this time recommend changing the notice provisions, or extending the response time period. One of the greatest advantages of the Internet as a commercial and communications medium, and simultaneously one of the greatest challenges it poses to intellectual property rightholders, is the speed at which transactions and transmission of information takes place. The tremendous growth and success of the Internet has been due to the ability of its users to embrace and adapt to this pace and the fundamental rationale behind the WIPO UDRP is its ability to arbitrate disputes as efficiently, quickly and inexpensively as dictated by this unique medium.

However, WG-A agrees that WIPO should be asked to refine the notice provisions to take into account the foregoing concerns by possibly requiring the notice to: be in the language indicated as the registrant's preference in the registration agreement; clearly outline the steps the respondent should take in preparing its defence; recommend to the respondent that it should seek the advice of counsel or an experienced arbitrator; and allow the respondent to seek a brief extension of time, retroactively if necessary, if it can show reasonable grounds for requesting same.

At this stage, it is the belief of WG-A that it is better to work out criteria for the reasonable grounds upon which extensions of time may be requested by the registrant, and to allow arbitrators to exercise their discretion in considering these grounds to grant extensions where the request is made in good faith, than to extend the time limits in general. Such criteria could include: differences in the parties' respective economic resources, degree of industrialization of the parties' respective countries, the necessity for and difficulty in obtaining translations of documents, or familiarity of the parties with arbitral proceedings. This is not an exhaustive list.

d) The need to clarify the arbitrators' duty to ascertain the applicable law in a dispute and to apply it (paragraph 176 of the Final Report and paragraph 15 of Annex IV).

WG-A agrees that this suggestion is important in the short term and recommends that WIPO be asked to revisit these sections of its Report. However, in the long term, WG-A recommends that WIPO be asked to consider developing an independent set of rules for its UDRP that is not based on civil or common law, and that does not rely on any existing statute or body of national case law.

e) The need to more clearly articulate the standard of proof in paragraph 171 of the Final Report, and associated sections of Annexes IV and V.

5) It is recommended that early in 2000, WIPO should be asked to provide a timetable in which it can make available its UDRP with an adequate number of arbitrators from a number of different countries who speak a cross-section of languages, trained in online arbitration, making it possible to offer these dispute resolution services on a voluntary basis to disputants having trade-mark / domain name disputes. It is recommended that such voluntary dispute resolution shall not preclude access to courts unless both parties to the dispute contract out of such access, in which case the results of the online dispute resolution process will be final and binding.

Conclusion

In summary, nothing has come out of WG-A's work or the RFC that suggests further delay is necessary in the implementation of WIPO's UDRP. Clearly some clarification is required with respect to the items mentioned hereinabove, and WG-A recommends that WIPO should be asked to work with a panel of international intellectual property and arbitration experts in reconsidering these issues, and to submit its suggestions for addressing them on an urgent basis. The overall time frame for implementation of the UDRP should not however, be delayed.

We also recommend that WIPO be asked to be ready to extend its UDRP process on a voluntary basis to other disputes as early as possible in 2000.

Finally, we recommend that WIPO be requested to continue the work begun during the IAHC process in relation to the development of a multijurisdictional, online dispute resolution process which could in time, build on the experience gained through use of the UDRP as it currently stands, and become the quick, efficient, and reliable alternative dispute resolution method of choice for all types of intellectual property disputes on the Internet.

Prepared by:

Jonathan C. Cohen & Amadeu Abril i Abril, Co-Chair, WG-A

B) Dissenting Opinions from the Vote of the pNC

Dissent submitted by J. William Semich (ccTLD):

To be specific on what I am *not* voting for:

-Community consensus does not exist for Recommendation 1, which recommends that the UDRP be put in place as soon as possible after the ICANN Board meeting in Santiago, Chile, and that *all* Registrars should be required to adopt the UDRP recommended by WIPO; I am not voting to forward the recommendations of item 1 to the ICANN Board as having community consensus support.

-Community consensus does not exist for the language in the three paragraphs in the CONCLUSION, which recommends that the overall time frame for implementation of the UDRP should not be delayed, and community consensus does not exist for the recommendation that WIPO be asked to extend its UDRP process on a voluntary basis to other disputes as early as possible in 2000, and community consensus does not exist for the recommendation that WIPO be requested to continue the work begun during the IAHC process. I am not voting that the items in the conclusion be forwarded to the ICANN board as having community consensus support.

ii) Dissent submitted by Don Telage, David R. Johnson and Phil Sbarbaro (gTLD):

PARTIAL DISSENT:

1) Procedural Problems. There is no way to determine whether the recommendations presented here from WG-A represent a "community consensus recommendation" without at least significant input from the General Assembly. Although the gTLD constituency has voted affirmatively, and supports the proposal in general, this procedural lapse is significant.

2) Partial Dissension. The gTLD constituency agrees in general that the recommendations of Chapter 3 and Annex IV & V of the WIPO report of April 1999 should be implemented as soon as possible ( Recommendation #1.), in a generally uniform manner across the current global TLDs ( Recommendation #2). We agree that uniformity should involve the scope of the dispute, the timing and procedures involved, and the remedies provided (Recommendation #3). We further agree that the initial scope should be limited to "abusive recommendations" as defined by the WIPO report (Recommendation #4). Finally, WIPO should be encouraged to provide further expertise ( Recommendation #5). We dissent and therefore disagree that any administrative dispute resolution (ADR) process should be mandated directly from ICANN upon any or all registrars, but should flow from the contractual obligations between registry and registrar. No process should be mandated by any entity, ICANN or registry, until those registrars who contractually bind their registrants to the process are legally satisfied with the procedures involved, and have given adequate notice to their registrants. ICANN will not incur any liability if these procedures are unfair, improperly implemented or inadequately staffed (Recommendation #1). Further, such ADR procedures, while uniform in most aspects, should allow for variance in fees, payment, panel providers, and involvement of the registrars, to the extent such registrar is willing to accept the possibility of liability in the process. ICANN should not be called upon to establish any accreditation process for panel providers but should leave it to the private sector (Recommendations #2 and #3). As clearly enumerated in Recommendation #4, substantial procedural problems remain to be addressed by the industry of registrars who will operate with these procedures. To proceed too quickly is to risk the failure of the procedures, and to destabilize domain name registration. Registrars should be given the time to draft and implement a practical ADR process based on real world experience with registration.

iii) Dissent submitted by Caroline Chicoine (IPC):

To begin with, the voter wishes to make clear that her votes were made with the inderstanding that the references to the term "arbitratration" were meant to refer to "administrative dispute resolution procedure" as set forth in the WIPO final report.

With respect to recommendation number 4, while the voter believes there is community consensus that the UDRP should apply only to bad-faith/absuive domain name registrations (cybersquatting) on a mandatory basis, she does not believe there is community consensus that it should be expanded or that there be a deadline by which such expansion should take place (see WGA comment archived). It is

recommended that this issue be referred back to WIPO and/or a working group for further consideration.

With respect to the comments and section a-e, the voter wishes to emphasize that there is community consensus that despite these comments and concerns, implementation of the WIPO fina report shall not be delayed. In other words, consideration of these comments and concerns by WIPO and/or an additional working group and implementation of the WIPO final report with respect to dispute resolution should proceed concurrently.

With respect to recommendation 5, the voter believes there is community consensus that UDRP be available on a voluntary basis for disputes outside of bad-faith/abusive domain name registrations, but not with respect to the recommended time frame for the implementation of same.

C) Comments to the Preliminary Report RFC and Final Report

WG-A comment archives may be found at:

http://www.dnso.org/wgroups/wg-a/Archives/index.html

http://www.dnso.org/wgroups/question-b/Archives/index.html

Comments to the Final Report are archived at:

http://www.dnso.org/dnso/dnsocomments/comments-wipo/Archives/index.html

The full text of comments and dissents submitted to WG-A can also be found throughout the GA archives on the DNSO web site at

http://www.dnso.org/clubpublic/ga/Archives/index.html

D) Report on the Formation of WG-A

(from WG-A's Preliminary Report - full text at http://www.dnso.org/dnso/notes/19990707.NCwga-report.html)

At the conclusion of its Berlin meeting on May 27, 1999, the ICANN Board adopted a number of resolutions, including a Resolution on the Report of the World Intellectual Property Organization (WIPO). This Resolution provides for the following, in part:

"WHEREAS, in the White Paper the U.S. Government called on the World Intellectual Property Organization (WIPO) to develop recommendations regarding trademark disputes concerning domain names;

WHEREAS, on April 30, 1999, WIPO submitted a report to the ICANN Board containing numerous recommendations that resulted from an extensive consultative process;

WHEREAS, the first ICANN-accredited registrars (testbed registrars), are preparing to introduce competition in the provision of domain registration services and accordingly are required soon to implement dispute resolution policies;

....

FURTHER RESOLVED, the ICANN Board refers the recommendations in Chapter 3 of the WIPO report (with associated annexes) to the ICANN Domain Name Supporting Organization (DNSO) for recommendations the DNSO [sic], to be submitted to the ICANN Board by July 31, 1999;

FURTHER RESOLVED, the ICANN Board requests that by July 31, 1999 the DNSO submit to the Board any other recommendations the DNSO may have concerning a uniform dispute resolution policy for registrars in the .com, .net, and .org TLDs; "

The Provisional Names Council (pNC) held its first informal meeting in Berlin on May 27, 1999 at which Jonathan Cohen was asked, as the Interim President of the Intellectual Property Constituency (IPC), to serve as "focal point" for an online discussion on Chapter 3 of the WIPO report, pending the formation of a formal Working Group (WG) to deal with the issue, by the pNC at its next, formal meeting.

On June 2, 1999 Mr. Cohen distributed a request for comments among members of the IPC and other pNC reps, (for re-distribution within their respective constituencies) asking that a dialog be opened and comments on Chapter 3 of the WIPO Report be circulated among the members of the DNSO constituencies. Respondents were specifically requested to not merely reiterate comments submitted to WIPO during its own RFC process, as those comments were reviewed and incorporated into the results of that process, but to make an effort to revisit and amend any prior` submissions in view of recent developments.

On June 2, 1999, Mr. Cohen also sent a request to all members of all constituencies (through the respective pNC representatives) for the submission of names of all those interested in participating in the WG on Chapter 3 of the WIPO report. On June 4, 1999, Mr. Amadeu Abril i Abril was asked to participate on behalf of the Registrar constituency as co-chair of this WG.

On June 8, 1999, Mr. Cohen again addressed the other members of the pNC and circulated the list of individuals from the IPC who had volunteered to participate in this WG to date, and reiterated the request for volunteers from the other constituencies. To initiate and/or facilitate discussion, he further provided some commentary on the various schools of thought with respect to WIPO's role in dispute resolution on the Internet, and formulated four questions for discussion to focus the WG's inquiry relating to Chapter 3 of the WIPO Report.

The first formal pNC meeting was held by teleconference on June 11, 1999, by which date a list of volunteers for this WG from the various constituencies had been compiled. At the meeting, WG-A was formally recognized by the pNC to address the issue of Chapter 3 on Dispute Resolution of the WIPO Final Report. The questions proposed by Jonathan Cohen as the basis for WG-A's inquiry were accepted. WG-A was initially composed of fifteen members, including co-chairs Jonathan Cohen and Amadeu Abril i Abril. Results of this NC meeting, including the initial list of

members were posted at <www.dnso.org/DNSO/notes/19990612.NCtelecon.html> on June 12, 1999. It was further announced therein that: the WG was still open to members of constituencies that were not yet represented in the WG and to other experts invited by the co-chairs; that WG-A must present a report by July 7th which would be posted on the DNSO website for public comment until July 24th; and that after that date, with the report and the public comments, the provisional Names Council will prepare a report that it will send to the ICANN Board on July 31st, the deadline set by ICANN.

WG-A members were assigned on June 14, 1999 to sub-groups, each of which was responsible for one of the four discussion questions. The initial four questions and sub-group members were the following:

Question (a)

Should the WIPO dispute resolution process be confined to cybersquatting / cyberpiracy, or should it be considerably expanded?

Peter Dengate Thrush

Jon Englund

Jonathan Cohen

Question (b)

Should there be a standard dispute resolution process throughout all Registrars / Registries?

Amadeu Abril i Abril

Randy Bush

Hirofumi Hotta

Ken Stubbs

Marylee Jenkins

Keith Gymer

Question (c)

Should the dispute resolution process be voluntary or mandatory or a combination of both?

Mike Heltzer

David Maher

Ted Shapiro

Luis H. de Larramendi

Question (d)

Should there be some method for contracting out of the right to seek a court ruling if one undertakes to submit to the dispute resolution process?

Susan Anthony

Mark Partridge

Dr. Willie Black

Kathy Kleiman.

The guidelines circulated by Mr. Cohen to the sub-group leaders and members for carrying out their work were the following:

Immediately contact others in the group and agree on the rules, tasks and timetables for completing research and providing an opinion on the question.

If it is believed to be appropriate, subdivide or add a question to be answered.

Real effort should be made to seek out opinions from groups, individuals, regions or organizations that have not been previously canvassed.

Review and briefly comment on the opinions given in the WIPO RFC's and review the WIPO commentary and conclusions to determine if there is a problem with either in terms of consistency or otherwise, and if so, indicate clearly and concisely what the problem is and why.

Assess whether there is a WG sub-group consensus, and if so, give it. If it differs from the WIPO recommendations, indicate why, giving the basis of the difference, and if there is minority view, provide this also with the reasons for the view and/or why it differs from the majority view.

If possible, draft the recommendation to ICANN.

WGs are not limited to seeking opinions from DNSO members only. It is important to canvass as broad a cross-section of opinion as possible, particularly from participants outside of North America and in view of the large number of individuals and organizations that were already consulted during the WIPO process.

The ultimate goal is to define a WG consensus on these four questions that is based on a broad cross-section of an informed group of people who can do some novel and independent research on these issues.

Emphasis on new ideas in relation to the four questions.

The second pNC meeting was on June 25, 1999 in San Jose, California at INET '99. Among the items on the agenda (posted at http://www.dnso.org/dnso/notes/19990625.NCsanjose-up.html) was a progress report on WG-A.

With respect to WG-A's progress as of June 25, Mr. Cohen reported a limited response to his June 22, 1999 request for sub-group status updates, with the exception of sub-group (c). In the first ten days of the WG's operation, certain administrative and procedural difficulties appeared to be causing delays in the sub-groups' progress. Mr. Cohen indicated that the ICANN Board had been made aware on June 22, 1999 of the problems that may be caused by the accelerated schedule ICANN had imposed upon WG-A.

There was consensus at the pNC meeting that although WG-A had been asked to complete its mandate within an extremely short time frame and without a set of procedural guidelines or rules that would greatly facilitate all aspects of WG activity, the balance of opinion was in favour of WG-A proceeding with its work to the best of its ability in the time allowed, which it has done.

E) Personal Comments from the Co-Chair of WG-A- Jonathan C. Cohen

I think it is appropriate as the co-chair of WG-A to offer some personal comments on this process, having worked with the other members of the WG and the pNC in formulating these recommendations.

There is a reality to the WG-A consultation process which should be taken into account by those who would criticize the results of its study, and which was repeatedly pointed out to the WG-A participants as well as the members of the GA who were called upon to make submissions on the Preliminary Report. This process was not bottom-up; it was a top-down process starting from ICANN. It was not suggested by a constituency of necessity. The timetable was set by ICANN at a time when only a partial complement of the pNC was in place, and some of the constituencies of the DNSO, as well as its GA were amorphous at best. These factors inevitably influenced the extent of the work that could be done by WG-A, as well as the support it received both internally from the DNSO and outside participants.

I had made clear at the time of WG-A's inception that attracting significant participation, or even attention to this study, would be difficult, and therefore the amount of work done was not extensive. On the other side of the coin, the work done by WIPO in its international consultation and RFC process was extensive and lengthy. A broad cross-section of international stakeholders, both organizations and individuals, participated during the ten-month process and submitted comprehensive comments. WG-A's work should be evaluated in this context, and the possibility considered that many people who had participated in WIPO's process simply felt they had nothing further to add to the WG-A study.

While I recognize that the pNC and the DNSO organizational process is still not complete, and some people, both within the DNSO and other observers, feel that broader participation in the evaluation of Chapter 3 of the WIPO report is required, I submit that such further evaluation is unnecessary at this time. Based on my experience of the past two years with respect to the various international meetings and hearings on the development and implementation of a dispute resolution procedure for domain name disputes, I believe that further extending the review of Chapter 3 of the WIPO Report would not result in any meaningful increase in participation and input, given the extensive responses submitted to date.

Certainly the recommendations we are submitting to ICANN do not reflect unanimity, but there does seem to be a general consensus based on both WIPO's and WG-A's RFCs, with some notable dissents. Both the recommendations and dissents indicate that the UDRP proposed by WIPO is generally acceptable and should be implemented, but clearly subject to further refinement and discussion. Most of the objections relate to the fact that the pNC is not complete, or the GA did not, or could not participate. This may be relevant to the weight of WG-A's "consensus", but may be irrelevant with respect to WG-A's conclusions. This must be left to ICANN. Many believe the time has come to put the UDRP into practice and allow these further refinements to be based on actual feedback from real-time experience with the process, rather than on theoretical argument. The UDRP will either be successful or it will not; it will either be attractive and used by disputants, or it will not. Further discussion will not determine which eventuality will occur.

The foregoing are my personal conclusions based on a review of the RFCs of WIPO and WG-A, and the WIPO report. They are not intended to be taken as the views of the IPC, or the other members of the pNC.

Thank you for your time and consideration of these comments.

Respectfully,

Jonathan C. Cohen

Co-Chair, WG-A

Interim President - IPC

pNC Representative - IPC