INTA
is a 121 year old, not-for-profit organization. Since the
Associations founding in 1878, membership has grown from 17 New
York-based manufacturers to approximately 3,600 members from around
the globe. INTA would like to expressly thank the individual
members of WG-A for their commitment of time and effort in further
looking into the recommendations concerning dispute resolution that were
set for in the WIPO Final Report. As requested by WG-A,
INTA's DNS Subcommittee has reviewed the WG-A report and would like to
make the following comments:
QUESTION (a): Should the WIPO dispute
resolution process be confined to cybersquatting/cyberpiracy, or should it be
considerably expanded?
OUR POSITION:
INTA agrees with the majority position identified in the
WG-A preliminary report. That is, INTA believes that the process should be
confined to cybersquatting/cyberpiracy, at least for the time being.
QUESTION (b): Should there be a standard
dispute resolution process throughout all
registrars/registries?
Sub-group (b) divided Question (b) into 4 questions:
(i) Do we
need a uniform DRP at all?
Sub-group (b) expressed a general preference for a
UDRP, but with reservation of the right to go to court. Sub-group (b) also
noted Prof. Froomkin's concerns about the lack of appeal to court for the losing
DN registrant.
OUR POSITION on (b)(i): INTA strongly believes
that an uniform dispute resolution policy must be
implemented.
(ii) Does a
DRP need to be gTLD-based or uniform across gTLDs?
Sub-group (b) recommended
"yes," although non-commercial gTLD could have a different ADR mechanism.
OUR
POSITION on (b)(ii): INTA agrees that there should a UDRP across all
existing open gTLDs or those that are created. That being said, INTA is
fully aware that any UDRP developed for open gTLDs could require some
modifications if so called "non-commercial gTLDs" or "chartered gTLDs" are
introduced.
(iii)Does a UDP
imply just uniform material rules or also procedural ones?
Sub-group (b) seemed to feel a less compelling reason
for procedural uniformity.
OUR POSITION: We adamantly disagree with Sub-group (b),
at least with regard to all open gTLDs. While INTA notes that
there could be room for some very slight procedural variations (e.g., fees
could be different or there may be different language requirements), we do not
think that there should be procedural variations with regard to timing issues,
notice issues etc. In sum, INTA believes that any procedural
variance should only relate to ministerial functions and not to procedures that
would affect the substantive rights of the parties.
(iv) Is a UDP
compatible with multiple ADR service providers? Is a single ADR-SP a
better choice?
Sub-group (b) concluded that there could be one single
provider or there could be multiple providers as long as each provider met
certain criteria. There could be some accreditation criteria (cf.
registrars).
OUR POSITION: INTA believes that there can, and
probably should be, multiple providers. We also agree with the concept of
accreditation, and urge that a registry/registrar should have to recognize
any ICANN-accredited service. We further agree that a list of
accredited providers should be provided, e.g., in registry and registrar
contracts.
QUESTION (c): Should the dispute
resolution process be voluntary or mandatory or a combination of
both?
Sub-group (c) recommended that you still be able to go
to court.
OUR POSITION: INTA agrees with
the conclusion of Sub-group (c) that any ADR must be
"semi-mandatory," i.e., INTA feels that the mechanism should be mandatory
but that the ADR should not prevent the parties from going to
court. This is the position advocated in the WIPO Report when the
Report recommends that parties should be allowed the option
of participating in ADR or resolving a dispute in
court. While INTA is aware of the concern noted in the WG-A
preliminary report that, in some judicial systems, a losing DN registrant
would not be able to appeal an ADR decision to a court. INTA believes
that the WIPO recommendations do not guarantee parties that court review is
available. On the contrary, the WIPO recommendation merely recommends
that parties having a judicial system allowing the review of ADR
decisions should not lose such a right under any ADR
system. Similarly, the Final Report does not wish for
the availability of ADR to preclude parties from going to
court in the first instance. Accordingly, WIPO recommended an ADR
mechanism that is purely an "alternative" to court.
Any associated risks that may befall parties (i.e., the lack of a de novo
appeal for the ADR decision) must be evaluated by the parties
and counsel when deciding whether to pursue the ADR process
or pursue an action in court.
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?
OUR POSITION: INTA strongly believes that the
parties should have a retain the option of going to
court.
Once again, we would
like to express our gratitude to those individuals that have given so much to
this process. It is our hope that these comments will assist WG-A in
finalizing its report for submission to the Names Counsel. It is also
INTA's sincere hope that WG-A will recognize the majority of support
expressed for the WIPO recommendations relating to ADR for
cybersquatting/cyberpiracy cases and we urge WG-A to encourage the Names Counsel
to recommend that the ICANN Board call for the immediate adoption by all
registries and registrars of an acceptable ADR procedure in such
cases.
Sincerely,
J. Scott Evans, Chairman
DNS Subcommittee, a subdivision of
INTA Special Committee on the Internet