AOL Comments

["Rita Rodin" <RRODIN@skadden.com>]

     AOL would like to take this opportunity to thank the many registrars whose hard work and cooperation resulted in the Uniform Dispute Resolution Policy ("UDRP") presented by the registrars in Santiago.  The goal of the effort was to devise a system to allow the rapid, inexpensive and fair resolution of the narrow, but destabilizing category of disputes that have 
been proliferating in the courts relating to abusive domain name registration 
practices.  In drafting the Policy, the registrars attempted to address the 
concerns of as broad an array of Internet stakeholders as possible, and to  
accommodate the competing interests of reducing abusive registrations and 
avoiding the creation of a new process that could itself be abused.  
 
     AOL commends ICANN for appointing a drafting committee that, since 
Santiago, has continued to address the concerns of the Internet community and has worked towards the implementation of the UDRP.  The revised UDRP advances the effort to create a uniform policy that can be used and accepted by the entire community.
 
     AOL believes, however, that certain additional revisions are warranted to the UDRP and to the Rules for Uniform Domain Name Dispute Resolution Policy ("Rules") to insure that the UDRP will be widely used, thereby reducing the number of court cases regarding domain names and hopefully benefitting the entire Internet community by reducing the incidence of consumer confusion and fraud in this new medium.  Our few comments to the documents are as follows:
 
Comments to the Uniform Domain Name Dispute Resolution Policy
 
     Sections 4(b) and 4(c) generally:  The language used in these sections, 
while similar in concept, varies somewhat from the anti-cybersquatting bills 
proposed by the United States Senate and House of Representatives.  ICANN should be cognizant of developments under the laws of the United States and other jurisdictions in this area, and revisit and revise these concepts, when appropriate and possible, in order to harmonize the UDRP with the developing international legal standards for abusive domain name registrations.

     Section 4(c):  The introduction to Section 4(c) should be modified to mirror the structure of Section 4(b), by providing a list of factors that are 
suggestive, and not necessarily dispositive, of what demonstrates legitimate 
rights.  Each Panel resolving disputes under the Policy should have the 
flexibility to hear and weigh the evidence as it deems appropriate in light 
of the circumstances presented.  Accordingly, as in Section 4(b), the 
language in Section 4(c) should read that "the following circumstances...shall be evidence of your rights or legitimate interest in 
the domain name...."  
 
     Section 4(d):  A number of ICANN constituents have expressed concern that the manner of selecting a Dispute Resolution Service Provider to resolve particular disputes must minimize the practice of "Provider shopping," or selecting a Provider based upon a preconceived bias on how that Provider will decide a given dispute.  AOL advocates that the best way to avoid this problem is to have disputes randomly assigned among a pool of Provider's that are approved by ICANN to adjudicate disputes regarding domain names.  Thus, a complainant will send a complaint to the registrar that maintains a disputed domain name, and that registrar will assign a Provider to the dispute on a random basis.   

     AOL further advocates that each registrar should be allowed to maintain a 'stable' of a minimum number of Providers, say three, which would be used for the random assignment of disputes.  Allowing the registrars to select 
Providers from the ICANN approved list would allow each registrar to 
accommodate local needs, such as linguistic differences.
 
     Section 4(k):  The UDRP and Rules should minimize cross-references and jargon as much as possible, in order to make them easy to be used and 
understood by consumers and small businesses.  For example, UDRP should define Mutual Jurisdiction, and not merely include a cross reference to the Rules.
 
     Section 8(b):  AOL assumes that the time period should be fifteen (15) 
business days, as elsewhere in the Policy, and not fifteen calendar days. 
 
Comments on the Rules for Uniform Domain Name Dispute Resolution Policy 
 
     Section 1 and Section 15(e): "Reverse Domain Name Hijacking"  AOL believes that the phrase "reverse domain name hijacking" is unnecessarily inflammatory, and that the concept may be incorporated into the draft using a more neutral term, such as "Abuse of Process" or "Procedural Misconduct."  
 
     Section 2(a)(iv):  AOL agrees that efforts should be made to ensure that 
registrants receive actual notice of a complaint.  This provision, however, 
creates an unwarranted burden on ISPs, web hosting companies, and web design companies, without materially improving the likelihood of actual notice.  AOL urges that this provision be deleted.  Many domain name holders, including cybersquatters, regularly put up no page or a page that is "under construction" for some period of time.  In these cases, an email address on the page may belong to the name holder's ISP or other third party host or design company.  Receipt of complaints at such addresses would create an administrative burden on these (usually small) companies, and may incidentally expose such third parties to liability relating to the cybersquatting activities, which is not an intended result of this provision.  Since the name holder's ISP or web site host may have the same contact information as the name holder's registrar, the provision does not serve its purpose of providing actual notice to the domain name holder.

     Section 3(a):  As discussed above, AOL suggests that the registrar 
administering a domain name should assign a Provider on a random basis for 
each dispute.  Under this system, all complaints should be submitted to the 
registrar.  A number of other changes to the Rules would be required if the 
rotating Provider option is adopted.

------------------------------------------------------
This e-mail, and any attachments thereto, is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information.  If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, and any attachments thereto, is strictly prohibited.  If you have received this e-mail in error, please immediately notify me at (212) 735-3000 and permanently delete the original and any copy of any e-mail and any printout thereof.