[wg-b] An idea?

["Michael D. Palage" <mpalage@infonetworks.com>]

In the process of preparing Working Group B's Final Report to the Names
Counsel this weekend, I was reading over all of the comments that were
submitted during the comment period. And the following idea came to me
during a brain storming session with another attorney. I think it offers an
interesting idea that was never considered.  I would like to hear any
"constructive" feedback that people have on this idea.

Temporarily Modified UDRP During the Rollout of a New Top-Level Domain Name

Any new top-level domain would be added to the root with no preferential
pre-registration rights. However, in those top-level domains where
additional trademark protection would be deemed necessary to thwart abusive
bad faith registration, a modified UDRP would apply for a limited time
period, say 30 to 60 days. During this start up phrase (30 to 60 days), any
third party (Complainant) challenging a domain name registration in this new
top level domain would contact a dispute provider and deposit the required
fee (approximately $750 under the current provider rules). The dispute
provider would then contact the domain name registrant and inquire if they
wish to respond to the third party challenge. (Note: A significant number of
UDRP are default proceeding where the domain name registrant never replied).
If the domain name registrant wishes to respond to the challenge they would
be required to deposit the same required fee as deposited by the
Complainant. If the domain name registrant (Respondent) declined to respond
to the Complainant, the domain name would be transferred to the Complainant
along with a refund of the initial fee. Unlike the current UDRP proceeding,
there would be no need for a written opinion in a default proceeding.

If the Respondent posts the required fee, the dispute provider will conduct
a proceeding using the existing UDRP rules. If the Respondent wins, the
dispute provider will collect its fees from the Complainant and refund the
deposit of the Respondent. However, if the Complainant prevails in a finding
of bad faith, the dispute provider will collect its fees from the Respondent
and refund the deposit of the Complainant.

For those proceeding in which there is a default proceeding, the dispute
provider will be compensated for their administrative oversight by a fund
maintained by the registry. In order to share this burden equally among the
entire Internet community, there will be a registry fee surcharge (less than
a dollar) that will be accessed to all domain name registration in that new
top-level domain. After the start-up phase (30 to 60 days) there will be no
addition surcharge on domain name registrations and the UDRP rules will
return to normal, i.e. a Complainant must pay the full fee in order to
initiate a challenge.

The benefits of this proposal are that there are no preferential
pre-registration rights given to anyone. Additionally, the economics of
abusive domain name registrations would be temporarily altered during this
land-rush phase to create a disincentive for these types of bad faith
registrations. Under the current system, a $20 dollar domain name
registration imposes upon the Complainant an obligation to initiate a $750
dollar proceeding. However, under the current proposal, people engaged in
abusive domain name registrations would be reluctant to expand any
investment in bad faith registrations if they would be required to invest
several hundred dollars in a potential losing cause.  Finally, this system
allows individual and small business the opportunity to register a domain
name of their choice and only have to expend a nominal fee to defend their
registrant if it is challenged, with the guarantee that if they prevail they
will be refunded their deposit.

Just a last minute idea, any thoughts?

Michael Palage

P.S. Happy Mother's Day to any mothers on the list