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ICANN - Singapore
Current State of UDRP
22 June 2011

 

 >>MARGIE MILAM:  Hello, everyone.  I think we're going to get
started now.  This is the workshop on the current state of the UDRP,
and our moderators today are Mary Wong and Jonathan Cohen.

 >>JONATHAN COHEN:  Sorry, it's very early in the morning.  Thank
you all for coming, especially at this hour.  Frankly, I wouldn't
have been surprised if there were only three people out here.

 My name is Jonathan Cohen, as you can see, and I've been asked,
along with Mary Wong, my partner in crime, to moderator this panel,
to take a quick look at the current state of the UDRP as set out
after a brief preliminary issues report and a Webinar, which involved
most of the people you see on the panel.

 Now, I think it's important to remember this was a preliminary
issues report.  Nothing's going to get decided here.  Nobody's voting
on anything.  There will be lots of time for the usual comment and
debate in any process in ICANN, and there will ultimate be a final
issues report before the matter goes back to the GNSO Council for a
decision.

 So this is just a chance for those who haven't been following to
get some idea of what's going on.

 Just very briefly, in February last, the council did ask for a
preliminary issues report which was given by the staff with various
thoughts and not conclusions but senses of what it felt the community
was saying based on the Webinar.

 Really, it came down to a series of different positions which are
more or less -- there seemed to be a significant number who felt that
probably no PDP was a good idea ticket, but there were clearly people
who felt that after 10 years, there was a real need for a review, and
there were others in other communities who feel it's really urgent to
have a free speech defense enshrined in the UDRP.

 And more people -- and quite a few -- felt that there are a number
of process issues as opposed to policy issues which should or could
be addressed now without a full PDP.

 And I don't -- I don't think I need to say any more about this at
this time, so Mary?

 >>MARY WONG:  Well, Jonathan, I think you covered all the bases but
I just would like to emphasize that as Jonathan has mentioned, we are
at the stage of a preliminary issue report, and for those folks who
have been around ICANN-land for a while, that might be a somewhat odd
concept, because the council has considered and is considering
adopting a working framework for policy development processes, or
PDPs where there would first be a preliminary issue report with an
attached public comment period, and with respect to this issue, the
public comment period is already open and will stay open.

 So the idea is that as between the preliminary issue report and the
final report, which will be prepared at the close of that period,
that community feedback is really important.

 So to that end, the Webinar that Jonathan mentioned, as well as
today's session, combined with the public comments, is really
critical to getting the full information before the council.

 And the other point I wanted to mention is that we do have a very
distinguished panel.  As Jonathan said, some of them were also
speakers at the earlier Webinar that some of you may have
participated in.  It was also very important to try to get as broad a
diversity of representations and perspectives as possible, and that's
what we're hoping to accomplish today as well.

 I think what we're going to do is we'll try to kick off the
discussion by first having Margie, who has been shepherding the
report and the process, give a brief update on where we are in the
sense of what the issue report pretty much said, and then open the
floor to the panelists for discussion.

 Margie?

 >>MARGIE MILAM:  Thank you, Mary.  I've prepared some slides.  I'm
not going to go into a lot of detail on them, because I think it's
important to have discussion, but just to give you background on
what's going on, as you can see there's been a lot of work that led
to the publication of the preliminary issue report.

 We did have this Webinar on May 10th where we invited experts from
across the spectrum of people that have dealt with the UDRP to really
hear their opinions and we also sent to each of the UDRP providers a
questionnaire to get information that could be reflected in the issue
report.

 So I'll provide you a link in one of these slides to the issue
report.  I invite you to take a look at it and to provide your
comment.  The public comment period is open until July 15th.  And
this is going to lead to a vote in the GNSO Council as to whether or
not to initiate a policy development process on the UDRP.

 And so the crux of the issue report is -- was:  What is the current
state of the UDRP?  And from the staff perspective, we really feel
that the UDRP, having been in effect for over 10 years, is a
successful policy.

 We look at the 30,000 complaints that have been filed over the
decade.  We see that there are four service providers that are
servicing the community and really providing choice and competition
in service and in dealing with these disputes.

 If you think about what the world was like before the UDRP, if
there was a dispute related to trademark infringement, you would have
to go to court, and sometimes that would be very costly, involving
parties from different jurisdictions, and so the benefit of the UDRP
is to provide a viable alternative to that costly litigation.

 And the success of the UDRP is reflected in the fact that it has
served as a model for ccTLDs and really has been adopted in various
registries reflecting the importance of it and the fact that it does
provide an alternative to litigation.

 The other thing that is useful is that the service providers have
dedicated a lot of resources in really educating the community on the
UDRP and in publishing decisions, and so there's a lot of information
out there that helps respondents and complainants understand their
rights and the -- and how to take advantage of the policy itself.

 And so in the report, we talk about the various opinions that were
reflected in the Webinar that we indicated earlier, and the thing
that struck us as staff was that across the board, there seemed to be
a reflection that the UDRP is effective and fair to respondents.

 One of the things that various speakers noted was that it's
flexible, and the theories that deal with trademark infringement have
evolved over time and the UDRP has been flexible enough to evolve
over time.

 So as an example, one of the speakers indicated that, you know,
there are such issues on how to deal with domain tasting, how to deal
with reverse domain name hijacking.  These are all complex issues
that relate to trademark infringement, yet the panelists and the
providers have dealt with it and have -- you know, and the decisions
have accommodated the various thinking with respect to these issues.

 The other thing that was noted was that the UDRP is viewed as
predictable and that's a good thing, and transparent.  So if you're a
complainant or you're a respondent, you can look at the decisions
that are out there and really understand, you know, where you stand
and what the likelihood is of actually prevailing in a dispute.

 There were some that noted that the UDRP is unfair to brand holders
but that's primarily because of the volume of disputes that you have
to go through because of the increased incidence of cybersquatting. 
So it's not so much that the policy itself is unfair but that the
volume of it, when there's a vast amount of cybersquatting, you know,
is quite expensive to brand holders.

 And the theme that I think you'll pick up as you read the issue
report is that although everyone recognizes that the UDRP is not
perfect, there was a consensus, if you will -- I mean, it's not a
GNSO consensus but it was a sentiment that more harm can be -- than
good can be done if the policy development process is initiated at
this time.  And so what we heard in the Webinar from the various
viewpoints was that if there is to be a review of the UDRP, it might
be best to focus on process improvements, and that generally from the
various stakeholders that participated in this Webinar, there was
this viewpoint that a PDP could actually undermine the effectiveness
of the UDRP, and so that's the reason several folks thought that it
was not a good idea to initiate a policy development process at this
time.

 So as part of a preliminary issue report, there is a section of it
that deals with the staff recommendation, and when we looked at these
perspectives that we heard from the Webinar, we felt that given the
community view that the UDRP should not be tampered with, that we
recommend against initiating a policy development process at this
time.  We feel, though, that if the council believes that something
should be done with the UDRP, that we're suggesting an alternative
approach, and that approach could be to convene a team of experts
that would focus specifically on process recommendations, and to come
back with ways to improve the process itself as opposed to looking at
the policy.  And once that expert team comes up with its
recommendations and those are hopefully adopted and implemented, you
know, the council could always initiate a policy development process
at a later time, if you want to deal with specifics related to the
policy itself.

 And I have a couple slides that talk about the issues that were
raised in the Webinar.  I'm not going to go into detail on them,
because it would take quite a bit of time, but I invite you to look
at the preliminary issue report because they're spelled out in the
issue report.  And what we tried to do in the issue report was to
divide up these various issues that were raised related to the UDRP
into two categories.  The first one being the policy issues, things
that probably would require a policy development process if we were
to look at these issues.  And then others that are process-related
that perhaps a policy development process or a PDP may not be
necessary at this time.

 And so as I inventoried these issues, these were the issues that we
felt that were policy issues, such as the bad faith requirement, the
bad -- in the UDRP, there's a notion that you have to prove that
there's bad faith registration and use in order to prevail.  And so
there's a discussion regarding whether the word "and" should be
replaced with "or" so that you don't have to show registration and
use, as it currently exists.  And if that change were to be made,
that's more like a policy discussion as opposed to a process issue.

 The other issues that relate to policy are the fact that the policy
itself doesn't have safe harbors, and there's a suggestion that the
policy should reference free speech and fair use.

 In the actual, you know, implementation of the UDRP, the panelists
look at those issues but it's not, you know, expressly written into
the policy itself, so that's another area that might be explored.

 And then the third one is the appeals.  There's no express appeals
in the policy itself, so in the policy you can't appeal a decision
you don't like, but you can go to court, you can, you know, always
appeal through the -- in the courts in your national jurisdiction.

 And so finally, these next slides really lay out the kinds of
issues that were raised that relate to process, and again, these are
very extensive.  There's probably 10 slides here, and in the interest
of time, I'm not going to go through them, but as you see them and
the materials are posted on the information for the session, you can
see that there's -- they're quite extensive, and they're -- if a
policy development process were initiated to deal with these, it
would be quite complex and would take a bit of time to get through
some of these issues, because these are complex legal theories and
issues that would need a lot of time and attention, if we were to
explore them through a policy development process.

 And so, you know, there's things related to timing and language of
proceedings, forum shopping.  There's concerns about how you deal
with responses and defaults and information regarding the parties,
issues related to laches, which is a very technical legal concept,
and evidence how to deal with submission of evidence in the policy
itself.  And again, if a policy development process is initiated,
these are the kinds of things that would probably be looked at if the
GNSO counsel were to approve a policy development process.

 And again, I'm not going to go through them because they are
extensive, but feel free to browse through the materials that are
posted on the information for the session.  So let's see if I can get
to the end here.

 >> (Speaker is off microphone).

 >>MARGIE MILAM:  Yeah.  There's quite a bit.

 And then finally, here's the information where you can really
participate.  If you want to hear the Webinar that took place, we
have an archive posted on the ICANN Web site.  The link is provided
on this slide.  And then again, I encourage you to participate in the
public comment forum, which is open until July 15th.

 And with that, I hand it over back to the moderators.

 >>MARY WONG:  Thanks, Margie.  Jonathan, I just wanted to jump in
here and just let folks know, if you're online and looking at the
agenda for today, if you are in the details for the session today,
you click on the link that takes you to the community wiki page with
the bios of all of our panelists, as well as a link to the actual
issue report can be found.  And that -- if you're not that familiar
with the issue report or if you've read it or, you know, the 52 Annex
2 recommendations are not emblazoned in your memory, it might be
helpful.  Jonathan?

 >>JONATHAN COHEN:  Thanks, Mary.  Thank you, Margie.

 We've talked about this and we think the best way to do this is of
course for Mary and I to say as little as possible, try and kind of
direct questions and suggestions to the panelists who, after all,
you're here to listen to.

 We've talked about the order in which people should speak and we've
come up with one where we think it will balance the different
perspectives and points of view, one after the other, as you hear
from them and I think may lead to a more lively discussion.

 Now, one of the things that we're hoping -- and I'm asking the
panelists to listen to this -- is that there's obviously a difference
between being asked if there's a PDP, you know, what do you want
changed or looked at, and whether you want or feel there's an urgent
need for a PDP.  And I'd like each of the panelists to consider that
question in their remarks.

 In addition, I would like them to consider the question of whether,
even if they feel there is a reasonably urgent need for a review,
does it need to be a PDP, or is there some other form of review that
they think might be useful in the current circumstances, such as, for
instance, a panel of experts which has been mentioned, where you turn
it over to experts who focus on specific problems and solutions to
them, rather than just a general focus.  Possibly even hand it back
to the -- to WIPO or a group of providers rather than WIPO to look at
that.

 These are all possibilities.

 And last, but not least, I'd like people to kind of at least take a
passing swipe at the issue of policy versus process.  There have been
a lot of comments that make it clear that it isn't always as simple
as one seems, to divide these issues into policy and process, and
perhaps more important, there are many who seem to feel that some
process decisions ultimately impact policy, and therefore, that's a
question that I think we need to think about in answering these
things.

 So without -- the other questions I'd like to ask really
specifically:  Do you think there's a need for and there should be a
PDP now, before the new gTLDs have been operating with the new
untested RPMs for 18 to 24 months, and why?

 Do you think a review of UDRP, if approved by the GNSO Council,
should or could be done in a manner other than a PDP, along the lines
I've earlier mentioned?

 And I'm doing this for information's sake, to put the panelists'
thoughts out there and to get people in the audience and in the
community thinking about these possibilities.

 And hopefully they'll comment.

 Okay.  Without further ado, from me, the order of speaking I'm
proposing will be Professor Konstantinos followed by David Turner
Roache with WIPO, followed with John Berryhill, then Mark Partridge
of the ABA, then the registrar stakeholder group, Statton Hammock,
rights holders, Susan Kawaguchi from Facebook, the National
Arbitration Forum, Kristine Dorrain, and last, but certainly not, the
Czech Arbitration Court, Petr Hostas.

 So I'm going to turn the mic over to Konstantinos.

 >>KONSTANTINOS KOMAITIS:  Thank you, Jonathan, and good morning,
everybody.

 For those of who know me and know my background, I think that it
should not come as a surprise that I am in favor of a review of the
UDRP, and this is -- for many years, first of all, the UDRP is the
oldest ICANN policy and it's been in place for more than 10 years.

 Thus, it is important for us to at least initiate discussions as to
how we can make the system work better.

 Secondly, and most importantly, if you want, in relation to what
Jonathan was saying, because we use the language of the UDRP and we
will be using also the process of the UDRP in the newly formed URS,
it is important that we do get the URS right, and I truly believe
that the UDRP, we -- back in 1999, because we really did not know
exactly what cybersquatting was and what abusive domain name
registrations entail, the UDRP worked, but since then there are so
many issues that have emerged and the UDRP has manifested that there
are some issues that it's not able to cope with.

 So contrary to what other panelists here might feel, I believe that
the UDRP is not a truly fair system, and it certainly could -- we
could do something in order to make it more fair.

 Of course for me, the big elephant in the room is:  Should we
review the UDRP which way it's -- we're going to go.  I mean, there
are going to be various groups that they want to be able and see many
things inserted within the UDRP, and that is pretty understandable,
so there is a great fear as to whether we should touch the UDRP,
whether it is the appropriate time to touch the UDRP, but what I
would like to address to all of you is that this fear should not
actually prevent us from going and looking at the UDRP, looking how
we can make the UDRP better, looking how we can make the UDRP a more
fair system, a system that is able to address the concerns of
trademark owners as well as domain name registrants.

 And one of the most critical questions that we also have to resolve
is whether there's going to be a substantive versus a procedural
review of the UDRP.

 The first one is more difficult.  The second one is not that it's
easier, but it's more straightforward, it is less controversial, it
will create I think less tensions, but at the same time we need to
remember that in many cases -- I personally feel, at least -- that it
is difficult to separate or divorce substance from process.

 So we might find ourselves in a position that we will start talking
about process and inevitably this will lead to some discussions on
substance.

 I think I should stop now and continue later and pass it on to -- I
can't remember who is the second panelist -- and I will come back
with more concrete proposals as to how I believe we can make the UDRP
better.  Thanks.

 >>MARY WONG:  Thanks, Konstantinos.  And we do intend to keep this
fairly free-flowing, and so Jonathan and I as moderators will
exercise the prerogative to pick up on speakers' comments and perhaps
ask them questions as they finish, which they can choose to answer at
this point or perhaps later on in the panel.

 So I think Konstantinos the obvious question here, given
particularly the Webinar and the feedback that's incorporated in the
issue report, is:  In terms of making the UDRP more fair, I mean,
what are some of the specific suggestions that perhaps we can
consider for the final issue report?

 >>KONSTANTINOS KOMAITIS:  Okay.  Well, on the substantive front, I
have always advocated and I think that it's very important that we
incorporate explicit fair use provisions or safe harbors, as they're
known.

 There are two reasons for that.

 First of all, as it was stated by- -- very correctly by the
panelists, the UDRP has been used as a model by various ccTLDs with --
for their own dispute resolution mechanisms.

 Now, this is a very interesting case study, actually, because many
of those ccTLDs, in many of those cases, these policies over the
passage of time have been amended to incorporate explicit fair use
provisions.

 For example, the Nominet system for the dot uk.

 So I really feel that the UDRP in the past 10 years did not really
evolve organically, and if you compare it, in the beginning everybody
was very excited and this was a very novel system, a great system,
efficient, cheap, fast.

 That was used.  But suddenly, whereas other policies managed to
just be more flexible enough and say, "Okay, let's -- we saw what's --
we saw the phenomenon of gripe sites.  Let's address it within our
own ccTLD policies."  The UDRP has failed to do that.  That is the
first substantive issue.

 The second one is a statute of limitations.

 Again, other ccTLD policies like the one for dot cn has actually
adopted a statute of limitations and I think that it's a very
reasonable thing to do.

 The idea that a trademark owner is able to initiate a dispute
against a domain name even though the domain name might have been
registered for five or 10 years is quite concerning, to say the least.

 So maybe this is something that we could think about, and we could
start discussing as to the domain name -- a domain name holder who
has spent substantial capital, who has spent a lot of time in trying
to build up his business portfolio through the domain name, and
suddenly he or she has to face a UDRP dispute after five years of
doing so.

 On the procedural aspects, first of all, I think that the UDRP
needs an internal appeals process.  It is important that the losing
party, being the trademark owner or the domain name holder, will have
the ability to go within the system, the same system that has created
-- that has deliberated on the decision, and seek relief.  And the
huge advantage, if you want, of the internal appeals process is that
it also provides for an indirect review of the decisions.

 The UDRP has good decisions but the UDRP has also bad decisions and
some of those bad decisions are actually pretty bad decisions, and we
don't do anything.

 The panels that are adjudicating those disputes are not going
through a review process.

 And internal appeals would actually provide this ability.

 The second one is that we need to address -- I need to stop?  Okay.
I will need to stop.  Sorry.

 >>MARY WONG:  Sorry.  That was my fault, but that was certainly a
good laundry list for us to consider.

 >>JONATHAN COHEN:  Okay.  So thank you very much, Konstantinos.  We
wanted to start out with someone who was passionate and who thought
out carefully his position, and that's what you've heard, which is
good.

 Now, somebody who has an opinion which may be somewhat different,
and I'd like -- before I turn it over to WIPO, who I know will
address matters as they like, I would ask them to answer a question
for me that arises out of Konstantinos', and that is:  While I
certainly understand the free speech limitation, one of the
challenges in an international organization is when you come to
something like free speech, there are differences of definition of
what that means, the permissible limits of free speech from country
to country, and I'd like to at least have that looked at.

 So, without further ado, David Turner Roache from the World
Intellectual Property Organization.

 >>DAVID ROACHE-TURNER:  Thank you very much, David Roache-Turner,
WIPO.  Thank you, of course, to Mary and to Margie for coordinating
this process so far and shepherding us all through it with such
success to date.  Probably no surprise to mention here that the WIPO
center supports the wisdom of the ICANN staff recommendation that
there be no PDP initiated on the UDRP.  We believe that now is
certainly not the time to do that for one of the reasons, I think,
critically that Konstantinos just mentioned in his presentation,
which is the still unresolved and untested of the URS, which we still
don't know yet if it will work.  We all hope it will, of course, but
we don't know yet.  And there  will, of course, be many, many
aspects, some of them substantive and some of them procedural in that
mechanism that bears similarities to the laundry list of issues that
we currently see in the ICANN staff report.  

 And the discussion that we are currently having about the UDRP can
only benefit greatly from the information that will inevitably flow
from the review of the URS that is scheduled a year after it comes
into operation.  And certainly we believe that the current discussion
and the community's information about the merits of the present
proposal can only be enriched by waiting until a more propitious time
to have the conversation that we are now having.

 For that reason, of course, I think we are also at WIPO fairly
skeptical about the merits of having a broader process that is going
to be exploring a very lengthy list of issues that would be
comparable to those that are included in the staff report.  This is
obviously a very voluminous and complex and likely to prove
contentious list of proposals.  It's obviously going to be a time
consuming and challenging discussion to be had.  And we think it is
one that would probably be better had if it would need to be had at
all, you know, a year and half, two years from now.  Perhaps we think
that the reasons for that are only strengthened, for example, by the
recent board statements to the GAC, for example, that trademark
owners for one would be expecting to rely on the -- you know, proven
and longstanding and presumably unchanged UDRP for the purpose of the
recently announced new gTLD launch.  

 We do believe that if there would be a PDP initiated as a result of
the present discussions, that that would probably also trigger some --
a need to consider some fairly fundamental questions about the
practice of cybersquatting itself.  

 The instrument is, of course, there principally to protect
trademark owners, although it has been overall a tremendous success
we believe and has been of great benefit also to other stakeholders
within the community, not least, you know, the registries and the
registrars and registrants, of course, themselves because it has kept
such a vast number of disputes out of the courts.  And of the very
small number of UDRP disputes that have found their way into the
courts only a very small minority of those have been successfully
challenged.

 So in conclusion, I think that we believe quite strongly as a non-
profit provider that having administered somewhat over 20,000 UDRP
cases now that the UDRP is in pretty good shape overall, while any
instrument can be improved, any legal instrument, we think that now
is probably not the best time to be having an extended discussion
about process with regard to its amendment.  

 And if there would be without in any way endorsing it, if there
would be a process to be considered, that any changes in that process
would need to be of a highly surgical and targeted nature.  

 I think it is probably also worth mentioning that probably the last
time the UDRP was reviewed which was, of course, back in 2003, there
were a number of points, I think, that were made that were salient to
the present discussion.  I won't list them all now, but I would
simply refer you to them.  And quite selectively from one of them,
perhaps which is that there are only some issues that are within
ICANN's mission; that while areas of improvement may be possible,
there doesn't need to be an urgent need for revision; that the GNSO
Council has other issues that may warrant a higher priority; and
that, of course, the UDRP is a consensus policy and should only be
reviewed by consensus.  

 These were the observations made back in 2003 and probably, I
think, they would be as salient today as they were then.  And I think
I would add to them as well that it's probably important that in
considering these issues, that we be mindful that if there would be
proposals where the procedures are substantively under consideration,
that the assessment of the likelihood of there being consensus, if a
process would move forward, would be an important part of that
assessment process.  Thanks very much.

 >>MARY WONG:  Thanks, David.  Just to follow up on your comments,
clearly the feeling there is that this is not the time to review the
UDRP; if it is to be reviewed at all, that it should be after the
launch of the new gTLD programs.  You suggest at least 18 months from
now.  

 The question I would have for you is given that there is a list of
issues that have been identified by our various panelists in the
community that are in the preliminary issue report, whether WIPO has
any comment about any of those recommendations such as the ones in
Annex 2.

 >>DAVID ROACHE-TURNER:  Thanks, Mary.  That's a very good question,
I think.  Certainly these are issues on which we would and do have
some fairly extensive comments.  I would be happy to get into any of
them on a line-item basis if you think that would be helpful.  

 I suppose I would just pull out a couple of issues to illustrate
the point that, firstly, I think we need to be conscious that,
although these are all proposals that have been put forward by
individual participants in this discussion, or more than one
discussion or more than one in some instances, there are also issues
that fall -- for the most part are either addressed under existing
instruments, whether consensus policies or through, for example,
jurisprudence that has come out of the existing policy.  

 One example of that is provided in the, for example, WIPO Overview
2.0.  I don't know how many of you here today are familiar with that
document, but certainly a substantial proportion of the issues dealt
within the list at the moment are and have been addressed by
panelists through numerous decisions that are distilled in that
document.  And I think the UDRP is itself obviously very much a
living instrument.  So we need to be conscious that a lot of these
issues that we are seeing here articulated in this list are and have
been addressed in fairly practical ways by hundreds of panelists over
thousands of decisions.

 In terms of the issues themselves, I think a couple of them might
stand out just to mention briefly.  And I think they also serve to
illustrate the point that it can sometimes be illusory to try and
draw distinctions that are too neat between substance and process. 
Obviously the implications of substance for process and vice versa is
one of the first things that you would learn at law school.  And I
think nothing illustrates that better than the broader discussion
about, for example, how to deal with privacy and proxy registration
services.  I think this is a very difficult and complex issue that
has tried the ICANN community now over several years.  Obviously
there are procedural aspects to that discussion which exist at the
level of the rules and how you would define the relevant respondent. 
But, equally, there are quite complicated issues to consider as well
about who would be the appropriate -- against whom the necessary case
would need to be made in a substantive sense and what forms of
conduct could be held against those defined individuals.

 I think another question is raised by the discussion about, for
example, the issue of the lock obligation under Paragraph 8A of the
policy which prevents registrants from transferring a disputed domain
name during a pending UDRP proceeding and whether or not that could
be perhaps clarified to indicate that such an obligation exists.  I
think it probably could be clarified.  Would it be worth opening up a
PDP to have that discussion?  Probably not.  Would there be policy
implications of that consideration process going forward?  Probably
yes, because the obligation itself stems from the policy and not from
the rules as does the registrars' existing toolkit under Paragraph 3
to rectify breaches that occur under that Paragraph 8A.  So there are
some complex questions there.

 >>JONATHAN COHEN:  We would like to turn to our third speaker.  He
is John Berryhill who has got a great deal of experience at being
respondent's counsel.  John?

 >>JOHN BERRYHILL:  Nothing better than getting up in the morning to
a discussion of the UDRP.  I'm captivated by Professor Komaitis' use
of the expression "more fair."  Prior to the second world war, the
United States had broken certain diplomatic and military codes that
were used by the Japanese.  And while they could translate a good bit
of it, some of it was hard to figure out, and there was a word that
kept coming up in Japanese military and diplomatic communications. 
And this word was used to characterize certain countries or
governments or politicians.  And from context, The Code Breakers had
figured out that the word must mean "trustworthy."  It was only after
the war that we figured out that actually the phrase meant "pro-
Japanese."  So when you use an expression like "more fair," it could
be a little bit difficult to decode.

 I have been involved in about 200 or so UDRP proceedings.  I have
been involved in E.U. disputes, U.K. disputes, dot US disputes, dot
IN disputes, and both for respondents and for complainants.  And I've
won a few, and I've lost a few.  And nobody wins them all.

 And when we're looking at, you know, how we want this to be more
fair and to whom, it is important to realize that this is a procedure
designed for the benefit of intellectual property owners in which
between 85 and 90% of the time the trademark claimant does prevail.

 Now, when you are looking at a success rate of between, you know,
85 or 90%, it's -- it's difficult to imagine what more you might want
in terms of substantive decision making.  Now, Ms. Kawaguchi is going
to talk to us about certain practical difficulties that she's had.

 But of the cases I've lost, which are the more interesting ones, I
think, to me, most of the time I feel like they've been decided
reasonably and reasonable minds can differ.  Panels tend to give, you
know, a lot of thought to these decisions.  And I think if a panel
finds itself engaging in too much thought, perhaps they have a
dispute on their hands that is not structured for a very quick
administrative proceeding.  

 There is a small residue of cases where, yeah, I believe they were
unfairly decided.  And I think everybody knows about that awful UDRP
decision.  Professor Milton Mueller who is here this morning in his
paper some years ago characterized certain decisions as RBDs, or
really bad decisions.

 I don't think that the bad decisions that everyone gets excited
about, or at least everyone in the community that I'm involved in
gets excited about, are indicative of flaws in the policy.  I feel
that sometimes panels make errors in applying or interpreting the
policy, but that's not a policy problem.

 Some UDRP panelists are not well-grounded in trademark law.  The
providers have different criteria for who can become panelists.  And
giving UDRP panelists more words to work with, I don't think, is an
opportunity for clarity so much as for further misinterpretation.

 The substantive nature of the policy, the three criteria, are very
open-ended and very flexible.  And that's important in an
international context.  One of the most important rules of the
procedure is Rule 15 that a panel may apply any principle of law it
deems applicable.  So whatever one's favorite legal doctrine or
principle may be, it is baked into the policy if you can persuade a
panel that the principle that you'd like applied is applicable.

 And it's very important to have that flexibility in an
international context because trademark law is not uniform.  It is
very easy for us to speak about things like fair use.  There is
various fair use or nominative use doctrines in U.S. law.  In Europe,
there's Article 16 of the European Trademark Directive which
encapsulates certain principles of nominative use, spare parts, that
kind of thing.

 But where you have got a dispute between, for example, two parties
and the domain name registrant and the trademark claimant are in,
say, Latin or South America, it is not appropriate to apply the same
principles of fair use in a geographically isolated dispute that you
may -- where it may essentially amount to an imposition of law that
does not apply to either party upon them.

 In that small residue, again, sometimes panels have decided the
decision on grounds that had nothing to do with the arguments made by
either party, which is always interesting when that pops out as a
surprise.  

 So if we look at Rule 15 as the more interesting rule to bring in
any principle of law that a panel deems applicable, there is -- I
think it is in Rule 12 where a panel may request further information
from the parties.  And it is probably one of the least used rules
whereby a panel can, if they're having a hard time making a decision,
draw in additional facts from the parties.

 But, again, these types of patterns one finds in decisions which
are -- one may consider to be wrongly decided or decided without
notice to the parties of the grounds of decision, it's more a matter
of how the panelists interpret and apply the existing policy.

 There has been a large body of decisions, and "large" also needs to
be put into context.  When you are talking 30,000 decisions over ten
years and there are currently some 90 million domain names in the
gTLDs, 30,000 disputes is a statistically non-existent number.

 And if one wants to characterize UDRP decisions as being fair or
unfair, it would be useful to put that in context of, well, how many
out of these 30,000 decisions, what proportion are unfair.  Because
in any process of human decision-making, one is not going to achieve
perfection.

 I will say that among domain registrants, there is a wide
perception of unfairness.  And partly that's because the bad cases
get a lot of attention.  And some of the most vocal critics of the
process tend to have the least engagement with the process, but they
can rattle off those five or six horrific UDRP decisions that are
generally tied to some sort of conspiracy theory or assertion that
this is an awful thing.

 What I tend to suggest to that community is that the UDRP provides
an opportunity to engage in an alternative dispute resolution process
at virtually no cost to the domain registrant, or very low cost,
compared to conducting litigation in what would be an inconvenient
forum.

 And it can frequently provide a trademark claimant who is just, you
know, off on the wrong track with a strong dose of reality that may
deter litigation.  Either party is prevented from pursuing
litigation.  So I think it is important that one keep that in
perspective in terms of the UDRP not being intended to grant
additional rights to either party or rights to parties in various
jurisdictions which are not appropriate to the rights that they would
otherwise possess under the applicable law.

 Now, I started by saying that trademark claimants win 85% of the
time.  And I think part of the question in the trademark community
is, Well, yes, I can win 85% of the time but why should I have to? 
This is a tremendously expensive thing to, say, spend $1,500 to
$2,000 in fees plus attorney time, which is typically more than that,
for what amounts to a no-brainer situation.

 And part of the calculation that you never see on that end is if a
cybersquatter has a domain name that's making $20,000 a year of value
to them and you spend $5,000 on an UDRP to obtain it, that remaining
$15,000 in value doesn't disappear.  

 But maybe we'll get into that.  Go ahead.

 >>JONATHAN COHEN:  Okay.  Thank you very much, John.  Very
interesting as usual.

 I'm now going to turn the mic over to Mark Partridge who is
representing the American Bar Association.  

 Thank you, John.

 >>MARY WONG:  I'm sorry, Mark, before you do that, I think what we
probably want to tell folks who are here is that we do plan to stop
briefly after our fourth panelist, since we have got a panel of
eight, because all three panelists up to now and definitely Mark,
too, have given us some food for thought on the issues report.  So we
will pause after Mark's presentation to allow the audience to ask
questions and to make comments.

 >>MARK PARTRIDGE:  Thank you, Mary.  Thank you, Jonathan.  

 I'm Mark Partridge.  And my role here on this panel is because I'm
a panelist with the UDRP process.  I worked with WIPO in the early
stages of formulating the policy that was adopted by ICANN.  I've
been a panelist since the start of the process.  I've seen a lot of
change in the decision-making that's gone on in the UDRP process.  I
recognize that there have been decisions that are bad decisions.

 In the early stages, we were looking at a system that did have a
lot of uncertainty, not simply with the UDRP but with trademark law
applied to trademarks generally.  We had a completely new law in the
United States, the Anti-Cybersquatting Consumer Protection Act. 
Before that, there was incredible uncertainty.  

 One of the points about why do we have the UDRP policy, if you go
back into the '90s, you faced a situation where the registry and
registrar of the time, Network Solutions, was in court virtually
every day dealing with claims that they were facilitating
cybersquatting.  Registries and registrars, therefore, were at risk
as a part of this.

 And the UDRP brings stability to that in terms of benefiting
registries, registrars, registrants who, back in the '90s would face
procedures where they really had no relief that would take the claim
away from them unless they were  prepared actually to go to court.

 The UDRP was designed to reconcile those various concerns and try
to create a cheaper more efficient dispute resolution policy.  It is
a balancing of many in interest that include registries, registrants,
registrars, brand owners and Internet users who have a right to find
the goods and services they're looking for, have a right to find the
content and information they're looking for.

 In terms of deciding does one want to open this up for
reconsideration, I think one -- probably three things to think about.
First of all, is it necessary?  Secondly, would it be beneficial? 
And, third, is the time right to do it?

 As far as it being necessary, Konstantinos and I debate these
issues quite a bit.  We served on the STI together, and I think we
have a pretty good understanding of each other's points of views. 
And oftentimes we are not all that far apart.  But Konstantinos made
a statement that it is not truly a fair system.  

 Well, that really needs to be explored more deeply.  It is an
assumption that needs some proof and is the unfairness in cases where
there are outliers generally?  Is it a system where good-faith
registrants are going to prevail and good-faith trademark owners are
going to prevail?  Or are there lots of problems?  That hasn't been
shown.  And the most part, what we are hearing from the people, as
John suggests who are actively engaged in the process, it does work
fairly well for resolving disputes, which is  what it's intended to
do.  

 Now, things have changed a lot in the last ten years.  When the
process started out, it existed in a world of uncertainty about the
legal issues in this area.  There is always uncertainty in the law. 
Now we have not only ten years of UDRP decisions behind us but we
have ten years of court decisions both in the United States and other
places, and panelists look to that.  As John mentioned, panelists
have a rule that they can apply the appropriate law that's applicable
to the case.

 In the early days, there was less of that to turn to, so the
panelists would think:  What would be the right application of the
legal principles to this situation?  Now we're guided not just by
UDRP decisions but by the courts.

 That provides more certainty to the participants.  There are more
advocates that are experienced with the process.  People like John
who represent registrants and complainants, as he said.  I also
represent parties in UDRP actions.  Advocates are more experienced
with the process.  

 There is an ability to appeal the process by going to the court,
and registrants do that.  They can do it on a pro se basis and have.

 But so I think you really need to test the question of whether it
is necessary to open it up for a review and consideration.  If you
did open it up, would it be beneficial?  

 There are tweaks that people can point to that would benefit
certain interests.  And John pointed out some of that depends on
where your interests lie going through the list.  You will see some
of those changes would benefit one group or would benefit the other. 
But overall, it is a balance.

 I think the bigger picture, though, is the stability of the process
and how important that is.  Right now, it's a fairly stable process. 
It gives domain name registrants a pretty good idea of what they can
and can't do with domain names that they register.  And there are
always people creative who will push the boundaries.  And if they do
push the boundaries, well, they might have to justify that.  But
there's a pretty well-established area where you can know that you're
operating within a safe harbor.

 So given that it creates a good deal of stability for registrants. 
Also, it creates stability for registries and registrars.  Remember
back in the '90s when registrars -- registry and registrar were being
sued over these things in court rather than having this simple
process.

 So think about, would it be beneficial to change that stability? 
And then the question is:  Is the time right to change that
stability?  We're just launching into a whole new change of the DNS
system with the launch of new gTLDs, creating a lot of uncertainty. 
Is it a good time to be adding more uncertainty to expected practices
and norms within the UDRP process, changing expectations about that
and creating more instability in the system.  So I think those are
important things to think about.

 John mentioned something about that often, it seems, that cases are
for the most part rightly decided.  And sometimes not.  But it often
seems that the mistakes aren't the result of the policy itself.  But
they are more the result of the policy not being applied.  So that
brings us to a point where what may be needed is more education, not
a change in what exists in the policy.

 WIPO does do some education in Geneva, Switzerland, about what are
the best practices for panelists.  But that's hard to get to for a
lot of people.

 John suggested that registrants aren't always well-versed in how
they can defend themselves, how they can deal with the process. 
Again, that's not something where you need to change the process or
the policy.  That's something where you would have education.  

 What could ICANN do?  ICANN could arrange for opportunities for
there to be education on how to participate in the process from all
around.  Educate panelists on best practices.  Educate registrants on
best practices and what it really means.

 And I will just end with one point.  We have to be sure everybody
understands what the policy is, what's there.  There has been a
suggestion that it doesn't account for fair use.  There is a
permission within the policy that specifically identifies that fair
use is a safe harbor as a circumstance.  There are not specific
examples of what constitutes fair use.  But that goes to the
flexibility.  What people do changes over time.

 It is accounted for there, and there are cases that specifically
address free speech and lay out the principles of free speech that
would apply to this.  There are probably many.  I am familiar with a
few of them that I have worked on.  And those and others through the
decision, plus court decisions, recognize the principles of free
speech being protected within this process.  So I'll end there in the
interest of time.  Thank you.

 >>JONATHAN COHEN:  Thank you very much, Mark.  As Mary said, I
think what we are going to do is, so we don't inadvertently run out
of time and cut off the ability of people in the audience, either
here online to ask questions, take some time now to get questions, if
there are any, from the first four speakers.  

 If I can sum up as best as I can see it, what I'm hearing is,
forgetting the question about whether a review is needed, the
speakers seem to suggest that the question is:  Is a need for review
sufficiently urgent, useful or important at this time?  That should
it take place now, possibly creating uncertainty before the new gTLDs
and RPMs have been in operation for 18 months; to assess how the UDRP
and RPMs are working so it is not an exercise based only on past
experience.  

 Clearly, a couple of speakers think yes and some are suggesting, in
my view, probably not.  So enough of that.  

 Let's have questions.  And I see, Milton, you are at the mic.  It
is all yours.

 >>MILTON MUELLER:   Is this on?

 Can you hear me?

 Okay.  There we go.

 So I have a comment and then a question, which will probably be
directed at John.

 So the comment is, it seems to me we are doing a review of the
UDRP.  We're debating and discussing its merits, its fairness, it's
effectiveness and so on.  And I guess maybe a general question might
be if those of you who are so convinced that the UDRP will stand up
to this scrutiny, why would you not -- why would you be afraid of a
review?  Why wouldn't you want to just go through a process as a
matter of routine and say, okay, it survived the scrutiny.  Nothing
is going to change.

 Do you not have faith in the rationality of the ICANN process?

 I don't know how anybody could not have that faith.

 But one point about the process, I do want to comment, and I'm
really disturbed, Margie, about the staff's opinionated nature of
their intervention.  It seems to me that the staff is here to
facilitate things, to administer, to organize the process.  But I
don't think of staff as a stakeholder who should be weighing in with
opinions about whether a policy is right or not.

 I'm really surprised by the aggressive way in which the staff has
done this.

 So anyway, those are the comments.

 The questions for John are very simple.  You made the correct point
that there is a percentage, maybe 2% of RBDs, really bad decisions. 
Do you think an appeals process would be a good way to reverse these?
Conversely, what is the likelihood that trademark holders or others
would abuse the appeals process?  Dragging things out.

 And do you agree with Konstantinos that there could be a statute of
limitations; that that would be an improvement on the process?

 >>MARY WONG:   We'll go to Margie and then to John because that's
the order of your questions, Milton.

 >>MARGIE MILAM:   Sure, Milton.  To address your concern, if you
take a look at the ICANN bylaws, Annex A, it explores what should be
in a preliminary issue report.  And so the preliminary issue report
addresses two aspects.  One, primarily, is the in-scope of the GNSO
Council.  Is it appropriate for the GNSO Council to look at this.

 And, I mean, I didn't cover it in our slide but we certainly do
believe it is within scope and it is perfectly appropriate for the
GNSO Council to do that.

 But the second part of the bylaws asks for staff opinion.  So this
is not unusual in this issue report.  It's in prior issue reports,
including the one that I think was issued back in 2003 on the UDRP,
when Dan Halloran, back when he was on staff, wrote it.

 So this is a normal part of the process.  It's something that the
council can disregard.  And it actually does.  With the vertical
integration one, for example, we made a similar recommendation not to
proceed and then went ahead and proceeded.  That's fine.  That's the
prerogative of the council.

 But that is the role of staff, and it's in the bylaws, to express
our opinion.

 >>JOHN BERRYHILL:   Milton, I will take the appeal question first.

 I don't actually have an opinion on appeals.  I don't -- you know,
I don't really know that throwing the dice in the box for another
throw is, you know, going to be tremendously helpful.

 What I would suggest that you do, and one of the things that I want
to do, is Nominet has an appeal process built into their DRS.

 I have not looked at the number of Nominet decisions, the number of
those that are appealed.  Now, I represented a party, we won at the
first level and we won on the appeal level, and it was, you know, an
extra nuisance work for what I thought was a foregone conclusion.

 I'd be interested to see the incidence of successful or
unsuccessful appeals at Nominet.

 And on -- My hesitation about substantive review, I will just put
that up to personal paranoia.

 I don't know where this -- I don't know why we're here.  I don't
know where this suggestion that -- someone was unsatisfied with the
UDRP and suggested it would be a good idea that we have the Webinar
and the preliminary report.  And I think if you put any ten people
together and say, "What would you change about the UDRP," you will
get a good list of stuff to talk about.  But I would suggest that you
-- the staff report proceeded from at least the Webinar.  But I don't
know where the -- I don't know where the initial dissatisfaction came
from.

 >>MARY WONG:   And I see a queue, so this is really quick, and I
think the background to this was that this was discussed extensively
in the Registration Abuse Policies Working Group, which completed its
work last year in 2010.  And that was one of the recommendations that
achieved unanimous consensus in that working group that was brought
forward to the council.

 If there's anyone else who has questions at this point, I would ask
them to step up to the microphone.  If not, we'll probably cut the
queue off at Phil.

 Jeff.

 >>JEFF NEUMAN: Okay.  Thank you.  Good.  This works.

 First I want to say because I heard a number of people talk about --
I am here representing myself at this point.  This is all personal. 
It's not NeuStar.  This is not a registry position.  Just make that
clear.

 And actually, probably here more of a personal interest because I
am very interested in being the chair of the PDP work team.  I have
dealt with too many years of just the words PDP.

 So I kind of want to ask Margie a question first because I'm kind
of amazed, just like Milton is, at the staff recommendation.  Not
necessarily for the same reasons, but the interest statement that I
saw in one of the slides -- I don't know if you can pull it back up --
but it basically said that the staff was thought -- or the opinion --
or the community was of the opinion that a PDP could undermine or
affect the stability of the UDRP.  Something like that.  And I find
that really amazing.  How is it that a PDP can undermine the
stability of the UDRP?

 I can understand outcomes of a PDP.  Recommendations of a PDP, if
implemented, could affect the outcome.

 And my message here is to talk about outcomes.  Everybody up here,
whether it's Konstantinos in favor of having a PDP on the UDRP or the
other speakers who were against having a PDP on the UDRP are all
expressing their opinions because of either fear of an outcome or in
favor of an outcome.  And would I suggest to everyone, including
ICANN staff, that that is not the way you should look when doing a
PDP.  You don't judge whether to do a PDP based on what outcomes you
want or don't want.  You judge a PDP on its merits as to whether
something should be reviewed.  Because always, at the end, there will
be recommendations.  And those recommendations require consensus in
order to be implemented.

 If people don't like that, if the IP owners, the business
constituency, the registries, registrars, don't like it, they vote
against it and it doesn't get implemented.  Then it's not achieved by
a consensus.

 So what I'd like to hear from the rest of the speakers is not they
don't want a PDP because they're afraid of the outcome or they want a
PDP because they want a specific outcome.  It is what is your fear of
doing the PDP?  What is it about those magical letters, P-D-P, that
evoke such emotion?  Why is it different to say we will call a panel
of experts?

 >>MARY WONG:   Jeff --

 >>JEFF NEUMAN:   I will wrap up.  That's my question.

 >>MARY WONG:   Since we have quite a lot of people lined up but we
do have Mark who wants to make a brief response.

 >>MARK PARTRIDGE:   Just real quick.  I don't think I am afraid of
the outcome.  I am concerned that by opening it up and having
uncertainty about what the outcome will be is unwise.

 So I don't think everybody up on the panel is up here saying they
are afraid of the outcome.

 >>JEFF NEUMAN:   All right.  I am not going to ask --

 >>JOHN BERRYHILL:   Let me pick the experts and I will be perfectly
happy with it.

 >>MARY WONG:   Maybe we can come back to it.  I don't know if the
other panelists will be addressing this point but it will be quite
interesting.

 David, do you have a brief comment and then we will take a few
questions.

 >>DAVID ROACHE-TURNER:   A brief comment.  One of the aspects worth
noting there is I think there is an element of uncertainty because
nobody knows what a PDP on the UDRP would look like, because we
haven't had one yet.

 The second point, I think, is that it is whatever it may mean in
ICANN parlance, it's a policy development process.  And presumably
it's going to involve a fairly significant investment of resources
and time and effort, et cetera, et cetera.  And usually, you wouldn't
think that a process like that would be initiated without some sense
of we would like it to go somewhere in terms of the change.  And
presumably, it would be the sort of thing that you would not invest
all of those efforts in if there was not some reasonable prospect of
a consensus being reached on the issues that it would seek to
address.  And fourthly, I think that, again going back to John's
point, I think there is an element of uncertainty about where the
onus for this particular PDP or the preliminary steps that have
preceded it have come from.  And it seems there have been some --
like the patient who hasn't been to the doctor for a few years and
you say, well, let's have a look at this and take its pulse and see
how it's going.  And it seems we have done that.  We have had a
Webinar.  We have looked at the instrument, and the view, at least,
of the participants in that process seems to be everything is working
pretty well.  There are some minor issues, but they are not major.

 Do we then go forward and initiate a process of exploratory surgery
to see if we can find the problems that we haven't found at first
instance when we went to the doctor?

 >>MARY WONG:   Thank you, David.

 >>JONATHAN COHEN:  David, I think we all need to remember, a), we
are limited in time; b), that there is the possibility of making
comments online and there will be other opportunities, and I'm
terrified of that.

 Okay.

 Please.  Two minutes, if you can.  Thanks.

 >>LYNN GOODENDORF:  My name is Lynn Goodendorf.  I am an
independent consultant on data privacy and data security.  And in
listening to you, I feel that there should be a desire to make this
whole process as healthy as possible before the introduction of new
gTLDs, and that perhaps there's a sense that the PDP process is too
extensive.  But it's appeared to me there's a long list of issues
that have been identified.

 I'm not familiar with all of them, but I have seen that people who
act in bad faith are exploiting the ability to transfer, and that
they are circumventing this process.  And they are avoiding the
dispute process.

 And in my mind, that is not helpful to postpone action.

 So perhaps there is another approach that could be taken to attack
the issues list.  And I don't know if that is called a PDP or, you
know, if you might have some other approach for doing that, but I do
think it's a mistake to postpone and not take action.  A.

 >>JONATHAN COHEN:   Okay.  Kristina.

 >>KRISTINA ROSETTE:   Kristina Rosette.  I represent IPC on the
council but I am speaking in my independent capacity.  I do represent
complainants in UDRP proceedings, but I have also represented a
respondent in which I asked for a three-person panel, I asked for
finding a reverse domain hijacking, and I got it.

 And in my view -- And that was a proceeding that, frankly, was not
what the UDRP was intended to resolve.  And to me really demonstrated
that respondents can have a fair shot at this.

 But I just want to throw out several things for consideration.  I
don't want responses.

 I guess my concern for having a statute of limitations is you need
to kind of think about what the carry-on from that is, because a
statute of limitations presumes that the trademark owner is aware of
the domain name.  So then you are getting into a process of how do
you automatically notify trademark owners?  Then we are back to this
whole, frankly, discussion we just got out of with the trademarks
claims process because you are in a position where in order to have
an effective statute of limitations, you have got to notify the
trademark owner at registration that somebody has registered a domain
name that includes their mark.  And you are not going to be able to
go with just contains -- or just consists of.  You will have to go
with contains.

 And I think you will end up with a whole cascade, frankly, of
headaches that I'm not sure anyone in this room even wants to think
about given some of the heartburn we are all having about this.

 Second, I am intrigued with the prospect of an appeal.  I'm not
sure the -- What I would like to find out before we go any further
down that road is what universe of people would that actually apply
to.  Because it would seem to me that if you are going to have an
appeal process, you really need to limit it to parties that actually
participated.

 So in other words, I don't think you can fairly say to a
respondent, okay, well, you didn't respond, you didn't bother to
respond, you didn't ask for an extension, but now that there is a
decision you can seek an appeal.

 So I would be very curious to find out, for example, from the
providers in what percentage of cases where respondents actually
participate do they lose.  And I have a feeling that that number is
probably a lot lower than we may all think.

 I do think based on my respondent representation, educating the
trademark and registrant community about what is and is not
appropriate for the UDRP, what it is supposed to do, what it is not
supposed to do in my view I think could take care of some of the
problems.  But I will obviously defer to the panelists here.

 Just picking up on a point that has been made, I think we should
explore what we can do other than through a PDP.  You know, I think
we have been make being reviews synonymous with PDP and I'm not sure
that's appropriate.

 And as to Jeff's point, yeah, absolutely.  Those three words give
me a headache, the likes of which I generally never have, because for
me, it means a big gigantic time commitment of years with a process
that can sometimes go on a life of its own.  Because the ICANN
community is so inclusive, you not infrequently have very vocal
participants who, frankly, don't really know much about the topic.

 So just kind of ending there, I would just really encourage us to
think is there a different way to deal with these problems.

 >>MARY WONG:   Thanks, Kristina.  And I should just say to John,
I'm sorry, we were going to cut off the queue at Wendy but we will
have another opportunity for questions a little bit later.  I just
didn't want to you keep standing there.

 >>PHILIP CORWIN:  I thought you were cutting it off with me.

 >>MARY WONG:   I'm sorry, Phil.  You are privileged to stand in
front of David at the very least, but we had asked for others to come
up to the mic when I made the announcement.  Let's just go to this
side of the mic.

 >> Okay.  (Saying name), an Internet lawyer, previously associated
with ADR.U and Czech Arbitration Court.

 I think probably anybody can see that UDRP has proven as a well
designed dispute resolution system.  And there is plenty of evidence
for that.

 And as we know, it has now become an online dispute resolution
system.  So it is evolving in time, and as it was said, it is very
flexible.  And it is very valuable, and it also seems that it fits
the intellectual property rights systems, et cetera, which must be
flexible, as we know.

 I think that it would be -- If there should be a PDP process, which
is a big if, then in my view, then we should wait for some time,
because I believe that with the introduction of new gTLDs and with
URS, et cetera, that there will be some further changes and positive
developments.  And I really believe that there will be positive
developments in improving the activities of the UDRP providers, that
there will be probably -- it may be that there may be new URS
providers that the current UDRP providers may also start to become
URS providers.  And this would influence their activities to the
better.

 So I think that at that moment, I would prefer that ICANN continues
the supervision of quality of the UDRP providers.  And at the same
time, perhaps convene a group of experts, and potentially one of the
outcomes of this group of experts may be a call for a UDRP.

 But I would defer it to a later stage.

 Thank you.

 >>MARY WONG:   We'll go to Phil and then Wendy to balance out the
mic.  And, David, you get to close us out for this.

 >>PHILIP CORWIN:  Thank you very much, Mary.  I am Phil Corwin.  I
am counsel with the Internet  Commerce Association.  Speaking on
their behalf, our members own or manage about 20 million domains,
about one out of every ten domains currently registered, so we have a
significant interest in this topic.

 I will be quite brief.

 The UDRP is pretty good, but there is nothing that can't stand to
be improved, and there's nothing that should be forbidden to be
looked at after a dozen years of use.

 I think there's a big issue being ignored here, which is the most
important word in UDRP, which is "uniform."

 We are entering a new world of not just proliferating gTLDs but
proliferating UDRP providers.  There have been applications not yet
acted on for the last two years, one from a group in India, one from
a group in Jordan.  There will be more.

 The WIPO-NAF duopoly that has existed over the last dozen years is
going to continue to erode and the only way to assure uniformity in
the UDRP process is to establish a standard agreement between ICANN
and the providers.  And that is not only needed to assure uniformity,
but it's also just unconscionable that ICANN empowers entities with
the power to extinguish, suspend, or transfer valuable, intangible
assets that deserve as much consideration as trademarks without any
agreement that sets -- that both gives them the power and sets limits
on the power and sets procedural use for the exercise of that power.

 So we believe that that -- Let's not get into a substantive
discussion of changing the substance of the policy, because we all
know that's going to immediately bog down and be nonproductive.

 Most of the issues that people are concerned with, administrative
and procedural issues, can be addressed in the context of developing
a standard agreement.

 Finally, I want to mention the URS.  It's our view that we think --
I don't want to say hypocrisy, but we see a great inconsistency of
statements, certain IP interests saying you can't consider any
substantive change in the URS, yet twice in the last two months on
the dot net renewal and on relaxing vertical integration for existing
gTLDs we have seen IP interests say that should be accompanied by
imposing the URS on dot com and dot net on the 110 million domains,
register them.  We believe adding URS -- it may be a (indiscernible),
but it is a major substantive change in the structure, so we would
suggest that a good time to discuss adding the URS to the UDRP would
be at this meeting, the midyear meeting of ICANN, in 2016.  That's
five years from now, and I will tell you why.  We won't see any new
TLDs, gTLDs, added to the root until the beginning of 2013.  The
initial six months are going to be sunrise and all of that.  We won't
see URS even begin to be used until late 2013.  We need at least two
years of experience with it, and then an objective study.  And then
we can have that discussion after that study, which would be 2016.

 >>JONATHAN COHEN:   Thank you very much.

 >>PHILIP CORWIN:  Thank you very much.

 >>JONATHAN COHEN:   I understand all these positions --

 >>PHILIP CORWIN:  My question is what do you think of that?

 >>JONATHAN COHEN:   That's what I would like is some questions, not
a five-minute statement, because they could be made very effectively
online or other forums.  This is a chance to question the speakers
about things they said, not to make a statement on behalf of a
particular view at length.  The speakers, I think, are doing a good
job of that.

 Wendy.

 >>WENDY SELTZER:   Wendy Seltzer, GNSO Council from the
noncommercial users constituency.

 I do want to start with a sort of brief procedural framework
because I think it's important to put this in the context that we're
hearing from a group of trademark experts and experts in use and
experience with the UDRP, and at the end of the day it comes back to
the GNSO Council to decide what to do with those experiences and
whether to initiate a review among the GNSO Council of the
performance, effectiveness, and uniformity of the UDRP.

 So even if there were complete unanimity on the panel up here, it
might still be the case that consensus on the GNSO Council
representing the consensus of the community would be the UDRP should
be reviewed, and the review then might reflect that viewpoint.

 And so the question that I have goes back to the role of the
appeal.  And one of the roles of an appeal in a judicial system is to
consolidate opinions and to knock out outliers and to help set a body
of precedent.

 At the moment, in the UDRP, it appears we have precedent being
created ad hoc by people choosing from among what are effectively
unreviewed district court decisions.  Is there a way in the UDRP or
is there a way that you could imagine in an appeals system of
consolidating a better set of precedent?

 >>MARY WONG:   Thanks, Wendy.

 David, and then we will go back to the panel.

 >>DAVID TAYLOR:  Thanks, Mary.  David Taylor, IPC rep to the GNSO,
not speaking in that capacity.  Speaking more as a panelist.  Like
John and Mark, I am a panelist for WIPO but also for dot EU and dot
CO.UK and also appropriately for dot MY for Malaysia.  So a few
ccTLDs, although I have never had a dot MY case to date, so I don't
know what that says about me.

 We also generally act for complainants, but also for respondents,
and we have acted for some 50 respondents over time, so quite a bit
of experience.  And, really, I have more of an answer than a
question.  It was on the appeals process and looking at Nominet.  And
the last time I looked at this, which was Valentine's Day of this
year, which shows how sad I am if on Valentine's Day I am looking at
appeals processes, but there were only ten appeals on Valentine's
Day.  That's over the last 18 months out of 151 cases.  And also,
interestingly enough, so that's about 1.8% appealed.  And interesting
as well is Nominet brought in a summary process and at that point
there was 325 cases and only one appeal of one of the summary
processes, so I thought that was an answer to the question when we're
talking about appeals.

 And just finally, I will just say I have serious misgivings about
dabbling with the UDRP at this stage because it's the only RPM that
exists for new gTLDs at present.

 So that's the important point.

 >>JONATHAN COHEN:   Thanks, David.  We are going to go back to the
panels now, and we have about 35 minutes.  So I'm going to ask each
of the last four panels to keep their comments to five or six
minutes, which is roughly the average we have had.  And then there
will be some time at the end for, hopefully, questions.

 So our next speaker is -- sorry, Statton Hammock from the
registrars stakeholders group.  Statton, it's yours.

 >>STATTON HAMMOCK:   Thank you, Jonathan.  After my first four co-
panelists spoke and after the engaging comments and questions from
the floor, I'm afraid that what I have to say will sound rather
mundane, but I will be brief.

 My name is Statton Hammock.  I'm with Network Solutions.  I am also
a vice-chairman of the Registrar Stakeholder Group and I want to
thank you all for inviting the registrars to participate and share
our views. And while I cannot claim that my comments today will
represent the views of every registrar, I think it's fair to say that
they do reflect the general views of many of the registrars.

 As you know, the registrars play an important role in the UDRP
process.  Specifically, we're tasked with securing the domain name
during the UDRP proceedings and then effectuating the decision, if
that means transferring the domain name to the prevailing registrant.

 So the comments that the registrars have submitted, which are
reflected in the preliminary report, really go to process and
procedure, because we feel that there could be much more clarity and
explanation with respect to some of the terms that we're obligated to
follow, and how we're supposed to effectuate those obligations.

 And we submitted nine or ten challenges as part of this process and
some suggestions.  And among those, I'll just highlight three.

 David mentioned one earlier, and that is registrars are responsible
for maintaining the status quo, that is the actual language from the
UDRP, during the proceedings.  Maintaining the status quo of the
domain names.

 So what does that mean?  Well, that's not really explained, but
what we have interpreted that to mean is that we've put it on what we
typically call legal lock status, which means the registrant account
information cannot be changed nor the domain name transferred during
the UDRP proceeding.

 So we have done that, but there is no other clarity around when
that maintaining status quo obligation is to kick in and when it
should end.

 So that's just one example of some additional clarity we would like
to see in the policy.

 A second example was -- would be there's no specific time frame or
requirement for the prevailing party, the registrant or the gaining
registrar, to do what needs to be done on their end to help us get
the domain name transferred to the prevailing party at the end of a
decision.

 So it would be helpful to have more specificity around what the
gaining registrar and what the prevailing party, the new registrant,
when they need to act and how soon they need to act after a decision
is rendered.

 And a final comment that we made that I'd like to highlight is
there's no clarity on what happens if there is a conflict between a
UDR- --  Our obligations under the policy and a decision by a court
of competent jurisdiction where that has instructed us to not
transfer the domain name.  And many of you are aware of that
circumstance that arose fairly recently with one of our registrars
where the UDRP decision would have them transfer to a prevailing
party, but the court in their jurisdiction still had a pending case,
and they were not permitted to do that and they found themselves at
the risk of being noncompliant.

 So we would certainly like issues like that addressed.  But, if I
could answer Jeff's question directly -- and now I'm speaking only in
my personal capacity -- about why not have a PDP now, my answer would
be -- and this is at the risk of offending those of you who feel
strongly that we have to continue, we'd like a UDRP PDP.  I'd say a
UDRP is just one of many policies that the registrars have to
implement.  And, trying to prioritize those policies that are --
those PDPs that are currently in process and those that we need to
implement, this doesn't rise, in my opinion, to the top, given its
relative success.  And I'll stop there.  Thank you.

  >>JONATHAN COHEN:  Thank you very much.  That's cogent.  

 Next we have Susan Kawaguchi, who is with Facebook and a rights
holder.  Susan.

  >>SUSAN KAWAGUCHI:  Hi.  Thanks for sitting and listening through
all of this has been extremely interesting to me.  Actually, I do not
advocate opening this up to a PDP.  I have concerns about process. 
And I certainly understand Statton's position on the registrar's
obligations within this.  Actually, you know, I've spent the last two
years at Facebook.  And we've filed just a handful of UDRPs.  We
don't use the UDRP process that extensively.  Prior to that, I was at
eBay.  And, once again, we -- it was sort of a last resort mechanism.

 So I don't have a tremendous experience with it.  But I'm very
concerned.  And two different issues I've had in the last nine
months, one of which was mentioned, in which, in my opinion, the
whole process went sideways when it came to the registrar maintaining
or securing the domain name and maintaining the status quo.  I don't
feel like that would -- means that we should open up the whole
process.  But I do think that there is -- there should be some sort
of mechanism or just sitting down and talking and figuring out what
does it mean to -- what is a legal lock, and what is that -- what is
the registrar required to do?

 What can a complainant expect out of that?

 The case that he referenced was a -- was facebok.com.  Facebok.com
was held by a registrant and used in a social survey scam.  That's my
characterization of it, at least. Where people were -- obviously,
it's Facebook except lacking one "O" and a lot of traffic.  250
million was the estimate by our SEO team.  250 million hits a year.

 So not only was the domain extremely similar to out trademark, a
good typo.  It was -- someone was making a lot of money off of it.

 So, after the UDRP decision was rendered, but in that 10-day
waiting period, the domain was transferred to a third party that had
no -- we've never figured out any connection to this domain name in
the past, nor to the registrant that we filed the UDRP against.  So
all of a sudden we have a complicated issue.  And it seems to me that
securing the domain name at the registrar level and being able to
rely on that would have prevented a lot of problems for us and the
registrar.  A notification of a breach by ICANN was eventually
implemented, and that wasn't good for them nor us.  It's been
resolved now.  Facebook now owns the domain name.  But there was a
lot to be learned from the situation.  And I would like to know that,
going forward, we did have some clarity on that -- maintaining the
status quo of a domain name registration.  

 And the registrant never responded.  We've not heard from him.  But
we are embroiled in litigation today in Luxembourg concerning the
domain name.  Now, this is a third party.  He's in Panama.  The
registrant was in Germany, who knows the connection.  There's been
some documents filed in the court case, but there's no decision
rendered.  And I'm not a litigator, and I'm not an attorney.  But I
just do not feel that somebody who is completely unrelated to the
registrant can go into a court and then -- and file litigation, which
is pretty easy to do.  And then bind the registrar to not fulfilling
the transfer of a decision in a UDRP.  

 The second one we had was -- there was -- all of a sudden, about
the time that the WIPO panelist was going to reverend the decision,
the domains were all of a sudden in a pending delete status.  That
was reversed pretty quickly.  It could have been a clerical error. 
Not sure.  But, once again, there's some ambiguity on securing the
domain registration at the registrar.

 So, whatever mechanism that would be --      I don't think it's a
PDP.  Maybe it's just conferences with the registrar community in
general, so that we have some -- we can expect a standard behavior in
the UDRP maintaining the registration.

 That's it.

  >>JONATHAN COHEN:  Thank you very much.  Next we have Kristine
Dorrain who is with the National Arbitration Forum.  Kristine?

  >>KRISTINE DORRAIN:  Thank you.  Can you hear me?

 Okay.  This is Kristine with the National Arbitration Forum. 
Thanks to everybody for sticking around this long.  At first, after
the first four speakers went, I thought oh, man, I'm at the end.  I'm
not going to have anything new to say because I pretty much agreed
with most of the comments everybody made.  So I want to take a
different tack and address some of the questions that people have
brought up to the mic, because I really do echo pretty much
everything WIPO said in -- you know, a lot of what John Berryhill
said and that sort of thing.  So we do not believe that a PDP is
necessary at this time.  "Necessary" being the key word.  I think a
couple people brought that up.  As to maybe at some point you want to
look at it and decide how well it's doing, but certainly it's not
needed.  It's functioning.  It's working to date, and it's doing its
job.  The panelists are addressing these issues flexibly as they come
up.  And it's just not really needed.  

 And I wanted to just sort of segue that into the thought -- a few
people came to the mic and suggested that a PDP would be beneficial
because it could inform the URS or it could inform the new gTLD
rollout.  

 Well, as I think mark mentioned, the UDRP is the only stable
portion, the only sort of known portion of the new gTLD rollout.  So,
A, upsetting it during this process would really upset the only thing
that we truly know and we truly have any sort of background on.  

 But, secondly, a PDP for the UDRP, if you look at the list, even in
Margie's slides, it's unlikely to be completed, I think, as David
mentioned, you know, before the gTLD rollout, before the URS is
implemented.  So a PDP for the UDRP is unlikely to have any effect on
the URS or any of the other dispute resolution mechanisms that could
arise under the new gTLD process.

 So, I think, as far as that sort of concern that, you know, perhaps
you can go into the UDRP -- or go into the gTLDs with an enhanced
UDRP or a better UDRP, I don't think you'd have that outcome by the
time the URS would begin.

 I think, you know, sort of tying in with that, to address Jeff's
question directly what is the fear?

 And, for us, it is the whole thought that the people that put
together the URS did not look at the current problems with the UDRP. 
It took lots of comments from the providers before the URS drafters
started implementing some of the process concerns.

 Still to this date, there are process concerns in the URS that have
not been addressed, just simple mere procedural issues.  While there
have been some updates, we don't know for sure that those are going
to be effective.  So, if we were to start a PDP before the URS had
any chance to be used or be reviewed, we don't -- we're not going to
see the effect of some of the changes they did make in the URS such
as not notifying the registrant until the domain is actually locked
at the registry, putting an actual requirement in to lock.  Those
sorts of things.  So I think for us the fear is that -- at least with
the timing.  I mean, the fear for us isn't opening it.  The fear for
us is the timing, that we've seen sort of the URS process.  And the
URS process has been what is currently frightening the National
Arbitration Forum into why the PDP for the UDRP could be a debacle.

 For Kristina's question, as far as the prevailing rates for
respondents, on the National Arbitration Forum's comments in the
preliminary issues report says that respondents prevail 13% of the
time overall. Where respondent has submitted a response, the
percentage of respondent success rises to about 19%.  In 273 cases a
respondent has prevailed even without responding, which is about 2%. 
In brief conference with David, he suggested that his numbers are
very similar.  And for both of us our numbers would go up
significantly if there's a 3-member panel.  So that would be the
success rate for respondents.

 And then my one thought with respect to Wendy's question about how
an appeals process could standardize sort of decisions across
providers, one thing that I just encourage you to remember -- and
that is, across all four providers, actually, there's a reasonable
amount of panelist overlap.  So it's not the exact same as having
four different district courts, if you will.  Because you're getting
a lot of panelist overlap for all four providers.  So you should have
-- you know, I think that, in and of itself, helps with the
consistency between the providers.  I've had a couple people e-mail
me and ask why don't we put out an overview like WIPO does?

 Well, because we don't have anything to add.  It's pretty
consistent all the way across the board.  And why would we go through
all that work when our panelists are coming up with, essentially, the
same answers to the same questions for the most part.

 And then I wanted to kind of finish up with two quick questions or
answers.  There's been some talk about how would you define the
policy versus the procedure?

 And the way we've looked at it in our comments is, if it would
affect the actual UDRP policy itself, that would be a policy issue. 
If it would affect the UDRP rules, that would be a procedure issue
because, presumably, the rules are only affecting the procedure of
how the process is run.

 And then, just to kind of wrap up, Susan mentioned maybe different
ways to, you know, to address some issues that would not include a
PDP.  Well, I happen to know that there, at one point, was a best
practices document going around in the registrars to try to figure
out what's the best way to handle UDRPs and that sort of thing.  And
that document could not be finalized because there was no consensus,
as I understand it.  I could be wrong on that.

 But, if you cannot even get to a best practices document within one
particular constituency, I have no idea how a PDP process opened up
to the entire community is going to work out.  So that's my final
thought on that.  Thank you very much.

  >>JONATHAN COHEN:  Thank you, Kristine.  Our final speaker is from
the Czech Arbitration Court, Petr Hostas.  Please.

  >>PETR HOSTAS:  Thank you, Jonathan.  It's a hard position for me
to be the last in the line, because mostly everything was said by my
predecessors.  But -- so I would try to be brief.  We, as the UDRP
provider, should concentrate on the procedural issues only.  And
believe me that there are certain issues, procedural issues in the
UDRP which could be addressed and which could be reviewed.

 But most of them, according to my opinion, are connected to the
other parties of the domain name world than the UDRP providers,
complainants, and respondents, mainly, registrars or WHOIS with the
proxies services and inconsistencies, and problems, for example, with
languages which are not shown in the WHOIS information.  

 So I don't think that it's necessary to change UDRP to solve
problems, procedural problems which could be connected to the UDRP
first site.  

 It should be noted that the UDRP is the only functioning domain
name dispute resolution system related to gTLDs and a lot of ccTLDs. 
And I'm not sure if it's right time, at the start of a huge amount of
new gTLDs and completely new system for the dispute resolution, the
URS from rapid suspension.  

 We do not know how the new gTLDs will impact on current UDRP and
how the URS will be used and if the conditions in the URS rules will
be finally found right.  So maybe it would be a waste of time to
start a PDP regarding, UDRP right now because the PDP would take a
lot of time.  

 And, finally, we will have some recommendations to improvement of
UDRP.  But maybe at that time we will have the outcomes from the URS
review.  And does it mean that should we start again with the PDP of
UDRP?

 Because maybe that some outcomes from URS review could impact UDRP
or could be used for the UDRP as well.  I think that we had only one
webinar and today's session to discuss the problems of UDRP and the
potential issues which could be addressed.  I think that the -- it's
not enough to start PDP on the basis of these two events only.  So I
would pledge for a panel of experts to determine and to find the
certain list of issues which could be solved.  And, if they find that
it's necessary to solve these issues on the field of UDRP, then we
could start thinking about PDP.

 Maybe that Mark was right, and many problems which could be the
first site connected with UDRP are based on the wrong application of
the policy and not on the policy itself.  And I think that the --
this question should be answered before we start PDP and not through
the PDP.  Thank you.

  >>JONATHAN COHEN:  Yeah, that's great. Thank you very much very
much, Petr.  We're going to open it up for questions in a couple
minutes.  But Mary and I have agreed that, to the extent that the
room is available and that panelists are available, if there are
questions or, within reason, comments, then we'll stay as long as you
like.

 I thought maybe I could just try and focus a bit.  Anybody who
wants to come up, come up.  I guess I was a bit surprised and wasn't
expecting the kind of fear comments that came from Milton and Jeff. 
But, you know, that's, obviously, sometimes how it affects people.  I
think it's a truism that clearly any system can be improved and with
time probably does need to be reviewed from one or more points of
view as things change.  But it seems to me the question that we're
looking at and what we're hearing is when and how this takes place is
not a fear of the process or the outcome but seems to be more concern
about whether it's a waste of resources or time right now because a
short delay would allow us the opportunity to see how the new rights
protection mechanisms in the new gTLD works and not have to repeat
the process.  Now, I don't know whether I agree or not.  I'm not
saying.  But that seems to be where we're heading.  There are points
of view here that have been expressed clearly and that should be
irrelevant, and we should just get on with it.  I'd like people to
just kind of focus a little bit on that they could, leaving it open
for people so to say whatever they like.  Let's start here because
you had to sit down before.  I'm sorry.

 >>NAOMASA MARUYAMA:  My name is Naomasa Maruyama from Japan.  I'm
working for Japan Network Information Centre.  That is the former dot
JP registry.  And I have some experience in the dot JP DRP.  That is
why I'm standing here.  So I'm not sure I'm answering to your
question or not.  

 But, anyway, I have to share with you my experience.  

 Just as I said, we are the former dot JP registry.  But now we have
the contract with the incumbent dot JP registry about the DRP for the
dot JP space.   And still we have the committee for the JP DRP.  And
experiences in conversation with the committee chair for several
years, I have one experience to share with you.   I think the -- I
talked with the several lawyers about the structure of the dot JP
DRP, and also that is very similar to the UDRP.  And my feeling got
from these experiences are that the -- rather than the intellectual
property lawyer, the lawyers working for the alternative dispute
resolution, that is the dispute resolution outside the court, as you
know, better understand the system of UDRP or JP DRP rather than the
intellectual property lawyers.  That is just my feeling.  I'm not a
lawyer.  Just a feeling.  

 And with that experience, I once have tried very challenging thing.
That is the -- I asked the DRP committee chair, that is, the
university law professor studying the alternative dispute, he also
playing the panelist for the Japan sports court.  Also he's studying
the water code dispute, that is the anti-doping activity, you know. 
And challenging is that, asking him to be a tutor of the JP DRP
system for the JP DRP panelist, potential panelist, that is, he's
sitting as the tutor and the audiences are the students.  Audiences
are the JP DRP panelists.  It was quite frightening moment for me,
because the IP lawyers are a very proud people.  Anyway, I was still
alive and I was not shot.  And the professor also is still alive.  I
think it succeeded.

 So that is something we tried to improve the JP DRP by having such
kind of the education session.  

 And here's the answer for Jeff Neuman.  I'm in favor of not having
the PDP for the UDRP in this case, this time.

 My question, my answer is that the -- there are too much IP lawyers
here in ICANN.

  >>MARY WONG:  Thank you.  Elliot?

 >>JOHN BERRYHILL:  Mary, can I follow up on that?  I agree with you
completely that the process depends largely upon the dispute
provider's being (speaking Japanese) which I'm told is trustworthy.  

 >>You need subtitles for the joke, John.

 >>NAOMASA MARUYAMA:   That is Japanese.  Thank you, yes. 
Trustworthy.

  >>ELLIOT NOSS:  Thank you.  Elliot Noss from Tucows.  Thanks for
this opportunity.  I've said publicly a couple times, and in writing
as well, that the UDRP is ICANN's second greatest success behind the
introduction of competition in the domain name space.  And, you know,
we see in the data overwhelmingly, you know -- if you just look at a
macro level down the list of decisions, you will primarily see that
the complainants that are successful are in pretty clear cases of
cybersquatting and that the respondents who, especially with 3-panel
hearings, are successful are overwhelmingly also in the cases of
overreaching intellectual property lawyers.  So I think that in the
main the system is working.  

 There are a couple issues that I would like to raise, though.  And,
really, you know, what I'm going to ask at the end is:  Is this
policy, or is this rules?

 So the thing that -- when the UDRP was formed -- and I was around
in the very early days for a lot of those discussions and, you know,
saw the dialogue -- one of the things that drove a couple of the very
early rules were that there were, rightly, very, very few people,
very few lawyers or potential panelists who had knowledge of the
system.

 That was something that was decided on in the 1998, 1999 time frame
and was, obviously, true then.  The domain name space was about
1/40th, the size and, obviously, about 1/5th the age that it is now.

 Today we have a situation where there has been, you know, vastly
maturing of the knowledge.  And one of the early -- let's call it
exceptions in the UDRP rules was a fundamental violation of a core
principle of administrative law, which is that people -- IP lawyers
primarily -- could act as both complainants and panelists at the same
time.  Not in the same hearing, of course.  But they would be
panelists on a regular basis and also could act for complainants. 
Now, again, maybe in the early days there was a legitimate reason for
that.  

 What you have today, however, is a situation where you have
panelists whose Web sites promote their success as complainants'
counsel.  And I don't think there is an administrative law professor
in the world who would see that as anything other than a most
fundamental violation of the core principle of trust in the system. 
I want this system to continue to evolve and grow and get better.  

 So would a rule that required that individuals chose to either act
for complainants or be panelists require a PDP or a change in the
rules?

 I'd love to hear some opinions on that.  I'd love Kristine's
opinion first, John.

  >>KRISTINE DORRAIN:  Since you asked.  

 >>ELLIOTT NOSS:  I did.  

 >>KRISTINE DORRAIN:  This is Kristine.  Just initially speaking off
the cuff, the only place that the panel sort of arrangement is
discussed is within the UDRP rules.  So by virtue -- just tacking on
to my further comment, that would be an amendment to the rules,
which, again, just sitting here thinking off the top of my head would
probably not require a PDP.

  >>ELLIOT NOSS:  That's fantastic.  Because, obviously, that's a
lot more effective and efficient.  So Kristine, Petr, would you
consider that rule, and how do I go about advocating for a change in
the rules?

  >>KRISTINE DORRAIN:  That's a great question.

  >>ELLIOT NOSS:  But you have to answer for me.  Because I can help
you with the registrar issue and would be happy to.

  >>KRISTINE DORRAIN: I'm serious.  I think that really is a good
question.  We have -- while not advocating a PDP, we have said there
are some rules specifically relating to registrars and other things
that I think could require some clarification or some changes,
possibly, certainly not rising to a level of a PDP.  And we also do
not know the best way to make that happen.  So, if nothing else comes
out of this discussion, maybe it segues into how do we clarify a few
points without --

  >>ELLIOT NOSS:  Well, Kristine and Petr, I think you all know that
you would -- if you were to go down the path that I'm describing, it
would be hugely unpopular with your core constituents.  I think, if
we were outside having a coffee or a beer, you would have to
acknowledge it is administratively appropriate.  I won't make you do
that publicly.  You called it interesting.  That's a huge win for
me.  

 But there need be some mechanism -- you know, if, really, we have
this shared goal of why do we need heavyweight PDP, which opens up a
whole can of worms, you know --   I mean, the rules are set by you
guys.  So, you know, could -- I'm happy to take it offline.

  >>MARY WONG:  I was going to suggest, Elliot.  This is a really
interesting thing that we haven't talked about on the panel and
certainly deserves more discussion and contribution from all
interested parties.  I couldn't tell whether it was John or Mark on
the other side.

 >>MARK PARTRIDGE:  I'd like to comment on that, Elliot.  I think
one of the things you suggested is the role of advocate and the role
of neutral --

  >>ELLIOT NOSS:  Panelist, not neutral.

 >>MARK PARTRIDGE:  -- is established in alternative dispute
resolution proceedings.  That assumption is not correct.  There are
many, many examples where the systems recognize that people can
effectively play both roles.

  >>ELLIOT NOSS:  What would a couple of those be?

 >>MARK PARTRIDGE:  The American Arbitration Association, the
Illinois court.  And I'll share -- I'll give you a copy of my book on
alternative dispute resolution that talks about this.  But this is an
area of study for me.  And the issue is not whether somebody's
playing both roles.  The issue is whether the proceedings are fair
and have appropriate proceedings.  And you can get -- I understand
you have a different point of view.

  >>ELLIOT NOSS:  No, it's not me who has a different point of view.
The maxim justice need not be done, justice need to seem to be done
is at the core of administrative law.

 >>MARK PARTRIDGE:  Right.  The other point I'd make about this is
that you benefit from having people who have experience in the
process making decisions.  One of the recent studies that came out
from WIPO cases, for example, pointed out that the panelists who have
the most experience are the ones who have decided most often in favor
of registrants.  They may get picked to be on three-member panels. 
That's a reason.  I happen to be one of those people who fits that
category.  I'm one of the top 10 in terms of decisions, and I have
one of the highest percentages in favor of registrants.

  >>ELLIOT NOSS:  We're always happy to pick you, if you're
available.  

 >>MARK PARTRIDGE:  So it's an interesting discussion, but there's
both sides to it.

  >>JONATHAN COHEN:  Can we put this off only because we're right at
the end of our time.  I'm going to give Konstantinos one minute and
Margie one minute to comment.  Then we'll go back to Jeff and Phil. 
And, if there are other questions and we have time, we'll go on ad
nauseum.

 >>JOHN BERRYHILL:  Just in the interest of full disclosure, though,
that, when you do get a copy of Mark's book, Mark is a panelist who
represents parties in UDRP proceedings.  That can be very
intimidating, Mark.  And I have been opposing counsel in a very hotly
contested case.  And it does feel inappropriate knowing that, well,
Mark is going to be citing his own decisions to a college of people
who have participated in the decision-making process with him.  It is
extremely intimidating.

  >>MARK PARTRIDGE: By the way, that's $19.99 for the book. 
Konstantinos?

 >>KONSTANTINOS KOMAITIS:  Thank you very much.  First of all, I
would like to clarify something that Mark said.  We should not be
comparing the UDRP to arbitration, because the UDRP and arbitration
are two totally different things.  I mean, arbitration is built
around very, very basic safeguards that the UDRP doesn't have.  

 And I really think that, Elliot, you hit the nail on the head with
what you said. Because part of the problem is this entitlement of the
UDRP.  The fact that you have panelists that have actually acted as
complainant counsel and, actually, they are using their own
decisions.  And then you have the precedent issue, which is being
repeated over and over again and, actually, demonstrates some problem
that the UDRP we cannot control who is adjudicating and who is the
counsel for trademark owners.  Thank you.  

 >>JONATHAN COHEN:  That's a very interesting point and does deserve
discussion.  I suggest we take it offline and onto the comment thing.
And last, Margie.

  >>MARGIE MILAM:  Yeah.  I wanted to address Elliot's point about
the process, how you get there.  In the issue report we noted that we
have updated the rules in the past, for example, the eFiling.  And
that didn't involve a PDP.  So I guess it's really a question of
whether the update to the rules are affecting non-contracted parties,
I mean, if you're looking at something that's going to impose new
obligations on contracted parties like registrars, you may have to go
through a PDP.  But a lot of the stuff we're talking about is really
implementation on the provider side and things related to the
panelists.  And that's not necessarily something that has to go
through a PDP.

  >>ELLIOT NOSS: Margie, I agree with that as a construct, except
that the eFiling was an administrative efficiency for the operators
who were affecting their own rules.  Good idea.  But still it's them
driving it and them affecting it for their benefit.  Appropriately,
right?

 How do I, from the floor, take an idea that might be appropriate
but unpopular and bring it into the system?

 That's a fundamentally different question around the rules.  And
I'd love to take that offline, take it to the comments.  But --

  >>MARGIE MILAM:  Sure.  And, in the preliminary issue report, I
don't think we address it in depth.  But that is a good thing to
address.  If we did this expert panel, what's the next step?  How
does the public participate and is there public comment and et
cetera, et cetera.  I'll take that back and try to elaborate on that.

  >>JONATHAN COHEN:  Jeff?

 >>JEFF NEUMAN:  I think Elliot actually made one of my core points
was that there are no contracts with the providers.  So there are no
mechanisms within the ICANN community to provide that input.  So,
Kristine, when you said these are issues to deal with the rules,
okay, great.  But, as Elliot said, how can we participate in that? 
We can't.  We never have.  And, as Elliot said, the eFiling was more
administrative to help you all.  It wasn't to open your rules.  So
perhaps maybe one of the suggestions might be to actually have
contracts with the UDRP providers and also a type of consensus policy
mechanism for the ICANN community to affect those contracts.  That
might be something to look at.  That wasn't my initial point, but I
think that's interesting.  

 One of my other points was about the notion of -- now we have the
URS, and so let's deal with that.  Let's wait 18 months or whatever
it is.  And wait to see how that works out.  I will note -- and there
is no registry rep on the panel, probably because, you know,
historically, registries haven't been implicated.  But let me tell
you in the past year or so, we get more and more either court orders
or complaints about registrars not implementing decisions.  I get
between 15 and 20 court orders or requests to take an action that a
registrar has not taken action on.  And you could say yes, well maybe
we could deal with that through the compliance function.  But I will
tell you right now that, when a complainant gets an order to transfer
a name, they're not going to want to go through the whole ICANN
compliance process to get a registrar to, you know, breach.  And
you've got 15 or 30 days to respond to the breach.  And then you go
months pretty much to get the ICANN compliance.  They come to the
registry.  And I will note -- because of all the problems with the
not-so-good registrars out there -- and, of course, that's no one in
this room -- because of that, the IP owners through the IRT and then
through the STI and all those processes decided it is the registries
that have to implement the URS.  Because they didn't want to deal
with the registrars.  So the registries are doing everything in the
URS, simply because of the fact that they didn't want to go through
the registrars.  And now there's no review of the UDRP if that's
what's being recommended.  So now the registries are stuck with that
burden.  And so I do want to say that that's something that I want
looked at.  Because I want to stop getting complaints from
complainants about UDRPs not being enforced and court orders forcing
me to do it.  That perspective has not been heard.

  >>JONATHAN COHEN:  Thanks, Jeff.  I don't think I have to
encourage you or others to make your comments online.  I'm sure you
will.  And I think I finish with what I said at the beginning.  And
that is, we're not making any decisions here.  We're just chatting. 
Phil?

 >>PHILIP CORWIN:  Yes.  Thanks again.       I thought Kristine had
an excellent formulation for how to generally decide what's
substantive and what's procedural, which is, if it changes the
policy, substantive.  If it deals with the rules, procedural and
administrative.  And I think the type of thing I've been advocating,
which is a standard agreement on the procedural administrative side,
there is no need to wait for experience with the new RPMs.  It's a
separate issue.  Not only is it unrelated to however the new RPMs
turn out, but there is, as I said, a need -- I remember looking at
the application last year from the group in Amman, Jordan, and
looking at the background of their preliminary panelists.  Many of
them had no prior experience with the UDRP.  We're not just going to
see new providers but new panelists.  That's why we need something
from ICANN to the providers that empowers them, that sets limits to
their authority, and that provides enforcement mechanisms if they
exceed their authority.  Because, frankly, my members are concerned
that new providers will try to gain market share by encouraging forum
shopping by complainants by taking a more favorable approach in
certain cases.  

 I think this is good for WIPO, too.  WIPO, clearly, as NAF refers
to WIPO on the panelists guide, that is the starting point for
consistency and uniformity in providing the UDRP and a contract to
talk to WIPO's not preeminent but lead role in this whole area.  

 The one other thing I would say is that, if anything is done going
forward, what's been done so far by experts is great.  But the
suggestion that anything going forward should be just experts, that's
not the ICANN way.  We need experts involved.  We need experts
providing the base knowledge and experience.  But it has to be open
to the entire community.  That's the way we should continue to
operate.  Thank you.

  >>JONATHAN COHEN:  Thanks, Phil.  That was good.  I -- okay.  Wendy.

  >>WENDY SELTZER:  Thanks.  I think this has been a really
interesting discussion.  It's been interesting because we've heard
people from all parts of the UDRP using and providing community,
giving evidence of places where it works and places where there are
problems with the system, unexpected outcomes for registries and
registrars, places where panelists and providers find gaps in the
rules, places where Facebook has found the system not to work quite
as planned.  And yet everyone seems -- many -- just about everyone
seems to rush to follow up "but we shouldn't do a PDP."  So maybe we
need not a PDP but something confusingly similar to a PDP where we
would gather the evidence of these sort of gaps and errors that we
could all agree there shouldn't be a reason for it to be difficult to
get the outcome of a UDRP recognized at the registry and registrar
level.  And it shouldn't be a complex procedure that makes the
registries and registrars cringe because it's not specified clearly
enough who's responsible for the implementation of those decisions. 
And we should have a place where members of the community can come
and contribute their input on rules, changes, or clarity of rules or
problems with the rules that they've seen in practice.  And this
evidence gathering might be called a PDP or it might not.  But it
seems that we've gotten lots of useful information.  And we should
continue that information gathering.  And I would like then to see
and, as a member of counsel, to help gather that information and then
take the next steps as the evidence and information suggest.  So
thank you.

  >>JONATHAN COHEN:  Thank you very much, Wendy.  Are there any
other comments or questions from the floor?

 We've gone well over our time.  Is there anybody who wants to make
a, literally, 30-second comment on the panel?

 Okay.  

 So I'm just going to sum up briefly and, basically, thank the
panelists very much for their time.  Margie for the time and effort
made to organize this.  Mary, as well.  I encourage all of you to
take what you've heard today and, where you have feelings about it or
thoughts about it, get them out online and be part of the process.  I
think Phil's remarks were absolutely spot on, that nothing in ICANN
gets done or should be done by experts, whether IP or otherwise,
without there be being a full opportunity to have it vetted by the
community at large with all the different opinions.  What you're
hearing today are separate, different opinions, different ideas,
different possibilities.  And I hope you'll all continue to not only
take an interest but to contribute in the outcome.  Thank you very
much for your time.

 [Applause]