CPT/CAC Objections to UDRP and Rules

[Theresa Amato <amato@essential.org>]

To:  The ICANN Board
From:  Theresa Amato, ex. dir., Citizen Advocacy Center; attorney, CPT
 & Jamie Love, director, Consumer Project on Technology
Re:  Proposed Uniform Dispute Resolution Policy and Rules
Date:  10.9.99

Thank you for this opportunity to submit comments on the proposed
Uniform Dispute Resolution Policy (UDRP) and the Rules for the UDRP
(Rules).  In the interest of brevity, we submit the following outline of
objections to the policy and the rules for implementing it.

1) We oppose the passage of this legislation by ICANN, especially by an
unelected, interim board that has made no substantial attempt to include
the input of consumers and end-users or to produce an elected
membership.

2) We oppose the concept of a uniform dispute resolution policy.
Pursuant to the White Paper, ICANN is supposed to be fostering
competition, not the passage of cartel-like policies that leave
consumers with no choice and no market.

3) We oppose the current UDRP and Rules as they are not user-friendly
and are stacked against the consumer.  For example:

    a) Par. 2 UDRP, places the burden on the registrant “to determine,
whether [the           registrant’s] registration infringes or violates
someone else’s rights” presumably anywhere in the world.
    b) Par. 3 UDRP, allows the registrar to cancel, transfer or
otherwise make changes to a domain name registration in accordance with
the terms of a registration agreement whose material terms are dictated
by ICANN or unexplained “other legal requirements.”
    c) Par. 4 (c) (iii) UDRP, favors property rights over speech rights,
depriving a respondent from the use of domain names that “tarnish” a
trademark or service mark.  Presumably, this means that a registrant
seeking to use “DoNotBuyWalmart” or “GMsucks” will be deprived of a
defense, if even they have a fair use, legitimate noncommercial purpose
in registering those names.
    d) Par. 4 (j), provides unacceptably vague terms for allowing an
“Administrative Panel” to redact portions of its decisions and thereby
prevent publication of decisions affecting rights.
    e) Par. 9 UDRP, does not require actual email notice of changes in
the UDRP.  (Who does “We” refer to in Par. 9?, ICANN, subject to notice
and comment?), and implies that the consumer actually has some other
choice of a registrar when all accredited registars will have a
“uniform” policy, and there is no other real choice.  (The paragraph
should read that in the event the registrant objects to a change in the
UDRP, “too bad.”)
    f) Par. 1 of the Rules establishes an unacceptable “mutual
jurisdiction” of the location of the registrar – a location not likely
to be convenient for the majority of registrants but highly convenient
for the registrars and lucrative for the lawyers licensed in their
jurisdictions.  It is unacceptable to force a waiver of the right to
contest jurisdiction by contract/registration and through this UDRP.

4)  Finally, we have some questions.  Who and what is a “Provider?”  How
will they be chosen or licensed?  How much will they cost?  Why are the
timeframes of this process so curtailed? Will this “administrative
panel” be allowed to be invoked or to continue its operations even after
a lawsuit has been filed or a decision rendered?  What is to prevent
complainants from using this procedure to “relitigate” decisions reached
in a court?  and Will there be some sort of user-friendly ombuds office
to navigate through these procedures?

If you have any questions about these comments, please feel free to
email amato@essential.org.  Thank you again for the opportunity to
comment.

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