ICANN|ARCHIVES

Item

Title

Detail

TAG Agreed Resolution

TAG-001

Inconsistency relating to implementation timeframes between policy and dispute procedures.

The last paragraph of Section 6 of the policy reads as follows: The Registry Operator shall undo a transfer if, after a transfer has occurred, the Registry Operator receives one of the notices as set forth below. In such case, the transfer will be reversed and the domain name reset to its original state. The Registry must undo the transfer within five (5) calendar days of receipt of the notice. The notice required shall be one of the following:
i. Agreement of the Registrar of Record and the Gaining Registrar sent by email, letter or fax that the transfer was made by mistake or was otherwise not in accordance with the procedures set forth in this policy;
ii. The final determination of a dispute resolution body having jurisdiction over the transfer; or
iii. Order of a court having jurisdiction over the transfer.

Section 3.5 of the dispute procedures reads as follows: “The procedures set forth above shall not prevent a Registrar from submitting a dispute to a court of competent jurisdiction for independent resolution before such an administrative proceeding is commenced or after such proceeding is concluded. If a Registry Operator decides a domain name registration should be transferred (either to the Gaining Registrar, or alternatively, back from the Gaining Registrar to the Registrar of Record), the Registry will wait fourteen (14) calendar days after it is informed of the decision before implementing that decision. The Registry will then implement the decision unless it has received during that fourteen (14) calendar day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that a lawsuit has commenced with respect to the impacted domain name(s). If such documentation is received by the Registry Operator within the fourteen (14) calendar day period, the decision will not be implemented until (i) evidence is presented to the Registry Operator that the parties have resolved such dispute; (ii) evidence is presented to the Registry Operator that the lawsuit has been dismissed or withdrawn; or (iii) the Registry Operator receives a copy of an order from such court.”

The policy requires registries to undo a transfer within five calendar days. This probably works fine for conditions (i) and (iii) but not for (ii) as the dispute procedures require registries to wait 14 calendar days to allow for the possibility of a law suite. In addition to the conflict noted above, the policy also requires a registry to wait 14 calendar days to allow for the possibility of the registrars appealing the registry decision to the second level dispute resolution panel.

New policy wording in Section 6: "The Registry must undo the transfer within five (5) calendar days of receipt of the notice except in the case of a registry dispute decision, in which case the registry must undo the transfer within fourteen (14) calendar days unless a court action is filed."

TAG-002

Request For Enforcement Filing Window

Section 2.3 of the dispute procedures requires that disputes be filed within six months of the alleged violation. Section 3 of the transfer policy restricts transfers during the first 60 days after a transfer is executed. I don't know whether it is feasible to synchronize these, but it would be greatly preferable if we could. The possibility of multiple transfers occurring prior to a dispute would significantly complicate the undo process for registries and registrars alike.

The policy will not be changed at this time but will be reviewed after implementation. In the meantime, it is okay for registries to establish a supplemental rule stating that, when a dispute is filed regarding a transfer that was processed and hence may require a reversal (undo), the registry may place the registration in Registry Lock status until such time that the dispute is resolved. Note that Registry Lock should not be used regarding a dispute involving a transfer that was not processed.

TAG-003

Registry Costs / Dispute Resolution Fee

There is no provision to compensate the Registry Operator for ‘undoing’ a transfer in the case when the registrars are able to resolve the dispute between themselves but still need to enlist the assistance of the registry to effect the 'Undo'. In that case, the registry would have to undo the transfer but would not be able to recoup any costs for doing so. On the one hand, we definitely want to encourage registrars to solve disputes among themselves, but we also want to avoid repeated abuse in this area.

The policy will not be changed. In these situations, the registrars should wait until after the 60-day transfer restriction is over and then should execute the transfer back as desired. It is okay for registries to implement supplemental rules that allow for processing the transfer sooner at a fee upon the request of the involved registrars.

TAG-004

Correction of Typographical Error

Section 3.1.4 (i)d: "d. Copy of a bilateral agreement, final determination of a dispute resolution body or court order in cases when the Registrar of Record is being changed simultaneously with a Registrar Transfer."

Error will be corrected.

TAG-005

Inconsistencies relating to waiting period terminology.

Section 4.5 of the dispute procedures seem to contain some time constraint inconsistencies within the section and in comparison to time constraints elsewhere. Here is the full text:

“The procedures set forth above shall not prevent a Registrar from submitting a dispute to a court of competent jurisdiction for independent resolution before such administrative proceeding is commenced or after such proceeding is concluded. If a Dispute Resolution Panel decides a domain name registration should be transferred (either to the Gaining Registrar, or alternatively, back from the Gaining Registrar to the Registrar of Record), such Registrar will wait ten (10) calendar days after it is informed of the decision before implementing that decision. The Registry will then implement the decision unless it has received from either of the parties to the dispute during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that a lawsuit has commenced with respect to the impacted domain name(s). If such documentation is received by the Registry, as applicable, within the ten (10) business day period, the decision will not be implemented until (i) evidence is presented that the parties have resolved such dispute; (ii) evidence is presented that the lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing the lawsuit or ordering certain actions with respect to the domain name.

Note that in one place we say "ten (10) calendar days" and in two subsequent places we say "ten (10) business days".

First of all, members of the task force and the TAG agreed that the use of business days should be avoided because they vary around the world, so at a minimum business days should be changed to calendar days.

Secondly, it would seem to be a good idea to keep these time restrictions consistent with the time restrictions for similar situations elsewhere in the documentation.

Will be changed to 14 calendar days.

TAG-006

Dispute Resolution Fee Amount

When and how will the registry dispute resolution fee be established?

To be decided between ICANN and registries prior to implementation

TAG-007

Independent Dispute Resolution Panel Selections

When and how will the independent dispute resolution panels be selected and put into place?

This will happen once the policy is finalized at the time of announcement and the beginning of the 90-day policy implementation window.

TAG-008

Record Retention

What is the time frame that the audit records of a dispute and its handling need to be kept/ stored?  In what format- electronic, etc.

3 years (policy does not specify format)

TAG-009

Dispute Resolution Fee Structure

The proposed Level 1 Dispute Resolution Fee of $50 per dispute regardless of the number of domain names included in the dispute is cost prohibitive to the Registry Operators. Given the volume of the business represented and intense manual requirements for research of a claim, etc., Registry Operators will invest a substantial amount of manpower and capital prior to getting paid even a portion of what it costs us to investigate the claim.  Additionally, there is not protection in the policy for the Registry Operator to get paid if a case should go to court, etc. The Registry Operator could be out of pocket with costs for quite some time.

To be decided between ICANN and registries prior to implementation

TAG-010

Transfer Dispute Backlog and Response Time

It is known that many registrars have been accumulating transfer disputes in anticipation that the new policy will be put in place. It is anticipated that once the new policy has been implemented that the Registry Operators may be inundated with a large number of Requests For Enforcement, some of which may involve thousands of names. There is a need to put some parameters around the number of cases submitted simultaneously and the Registry Operator's corresponding time to respond.  

First 2 sentences are accepted as in recommendation.

Further, if registries demonstrate excessive numbers of disputes, 14 days can be adjusted as agreed between ICANN and the registry.

TAG-011

Reversal of Dispute Resolution Fee

Will the registry operators be required to reverse a Dispute Resolution Fee in the event that the Registry's decision is appealed to and/or overturned at the Level 2 process or court?

Agreed that dispute fee will be labeled as "on-refundable fee".

TAG-012

Handling of Subsequent Activities

Because the window within which a registrar may file a Request For Enforcement is 180 days, not only is there the possibility that the name may be subsequently transferred to yet another registrar, there is the potential that other operations may also be performed on the domain name (examples - Sync or Renewal) before a Request For Enforcement is submitted. This raises questions as to how the Registry Operators will effect a reversal of the transfer.

The policy will not be changed. Transfer Undo mechanism as implemented by registries includes recommendations 1-4. The remainder of the question regarding other operations is left open for review.

TAG-013

ICANN Reporting

Will the Registry Operators be required to provide Transfer Dispute Resolution reports to ICANN? If yes, what is the frequency of reporting (Daily, Weekly, Monthly, etc) and what information must be reported?

The TAG will work on reporting requirements that will be incorporated in the Monthly Registry Operators Report that is given to ICANN

TAG-014

Registry Reporting

Will the Registry Operators be required to provide Transfer Dispute Resolution reports to Registrars? If yes, what is the frequency of reporting (Daily, Weekly, Monthly, etc) and what information must be reported?

The TAG will work on reporting requirements.

TAG-015

Forced Transfer

The Registry Operator must have the ability to effect a 'Forced Transfer' in the case where a Filing Registrar submits a Request for Enforcement because it (as the Gaining Registrar) has been unable to successfully transfer a domain name because the Non-Filing Registrar (Registrar of Record) has inappropriately Nak'd the request.

No Forced Transfer Command will be required. Registrars will be required to submit normal transfer commands.

TAG-016

Additional Transfer Restriction Period

Domain names that have been in dispute, are subsequently returned to the Registrar of Record, and are then auto-renewed have the potential to be in the auto-renewal grace period at a time when they normally would not be. Example: Domain name ABC.com has an expiration date of 5/12/04. On March 6, 2004, ABC.com is transferred from Registrar A to Registrar B and a year is added to the expiration date. The expiration date is now 5/12/05. On August 15, 2004, Registrar A submits a Request For Enforcement and Registry Operator decides that the transfer was in violation of the policy and uses the Revoke Transfer command on September 4, 2004 to return ABC.com to Registrar A and the expiration date is rolled back to 5/12/04. During the auto-renewal batch process that occurs on September 5, 2004, the domain name is auto-renewed, the expiration date is again set to 5/12/05, and the 45 auto-renewal grace period begins. On September 15th, Registrar C initiates a transfer for ABC.com anticipating that the new expiration date will be 5/12/06. However, because the domain name is within the 45 day auto-renewal grace period, the expiration date is rolled back to 5/12/04, the domain name is transferred to Registrar C and the expiration date is reset to 5/12/05.

The policy will not be changed. Registries will develop transfer undo mechanisms which may differ.