[council] Hre comes the text...

[Amadeu Abril i Abril <Amadeu@nominalia.com>]

Dear pNCers,

PSA attached text and Word versions of the test we will submit to the ICANN BoD.

Besdes the vote and the recommendations, we have included all relevant(in our
modest opinion) supporting documentation, including disenting opinions, a
styatment form Jon Englund explaining why he ws unable to vote and the sense
of his intended vote, the Final Report, reerences to the archives where
coments can be found etc.

We have to send this to the BoD WITHIN A VERY SHORT TIME. So please read it
and write to the list if you feel that we need to make any cgnage.

Best regards,

Amadeu

********

August 3, 1999

Ms. Esther Dyson, Interim Chairman of the Board
Mr. Michael Roberts, Interim President and Chief Executive Officer
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina Del Rey, CA 90202


Dear Esther and Michael:

In accordance with the Resolutions adopted by the Interim Board of ICANN in
Berlin on May 27, 1999, charging the ICANN Domain Names Supporting
Organization (DNSO) with the task of submitting its recommendations with
respect to Chapter 3 of the WIPO Final Report and a Uniform Dispute Resolution
Policy (UDRP) for registrars in the .com, .net and .org TLDs, to the ICANN
Board; and pursuant to the authority vested in the Provisional Names Council
(pNC) of the DNSO by the further Resolution adopted by the Interim Board of
ICANN in Berlin to the effect that the Names Council representatives chosen by
the provisionally recognized Constituencies shall constitute the provisional
Names Council, with all the powers set forth in the Bylaws other than the
selection of Directors (pursuant to Section 2(e) of Article VI-B of the
Bylaws), the pNC of the ICANN Domain Names Supporting Organization (DNSO)
makes the following submission to the ICANN Board as a result of the study
conducted by Working Group A (WG-A) on Chapter 3 of the WIPO Final Report (and
associated Annexes) and the pNC vote on WG-A’s Final Report dated July 29, 1999.


1.	The pNC Vote

The pNC voted pursuant to Article VI-B, Section 2 (d) of ICANN’s Bylaws on the
Final Report of WG-A (posted at
<http://www.dnso.org/dnso/notes/19990729.WGA-report.html>) on July 30 to
August 3, 1999.  The vote is publicly archived and may be accessed at
<http://www.dnso.org/votes/vote01/Archives/>.  

The ballot allowed pNC members to submit dissenting opinions in support of a
vote against any or all of the recommendations in the WG-A Final Report, and
these opinions are attached hereto as part of the supporting documentation
following the pNC recommendations below.  (They may also be accessed in the
vote archives at the site given above).  

The electorate consisted of eighteen pNC members.  The results of the vote are
as follows:  

Fifteen pNC members participated in the vote in time for the August 3, 1999,
9:00 EST deadline.  A sixteenth member voted after this deadline had passed,
and two members did not vote.

Ten members voted in favour of submitting the whole report to the ICANN Board
without reservation. The pNC member who voted after the deadline also favoured
the submission of the whole report.  

Three further members voted in favour of submitting the whole report, but
expressed partial dissenting opinion.

Two further members voted in favour of submitting some recommendations, but
not others, as detailed below:

Recommendation 1)
- fourteen eligible votes in support, one late vote in support, three partial dissents,
- one vote against;

	 	Recommendation 2)
- all fifteen eligible votes in support, one late vote in support, four
partial dissents and/or comments;

	 	Recommendation 3)	
- all fifteen eligible votes in support, one late vote in support, three
partial dissents and/or comments;

	 	Recommendation 4)	
- all fifteen eligible votes in support, one late vote in support, five
partial dissents and/or comments;

	 	Recommendation 5)
- thirteen eligible votes in support, one late vote in support, 
- two votes against
		  	
In sum, more than two-thirds, of the pNC voted to forward the set of
recommendations contained in the WG-A Final Report to the ICANN Board as a
community consensus recommendation.  

Accordingly, the consensus of the pNC seems to be in favour of the WG-A Final
Report, but with the overall caveat that the shortness of time available to
WG-A to solicit input from the DNSO constituencies, as well as lack of input
from the General Assembly (GA) leaves a question as to what the consensus of
the DNSO really is.  As noted in the WG-A Preliminary and Final Reports, WG-A
was asked to complete its work within an expedited time-frame, beginning at a
time when the pNC lacked a full complement of members and the administrative /
procedural framework for WG activity was not developed.  This latter process
is still ongoing.  In addition, a very limited number of comments were
received from the GA during the RFC period in which the WG-A Preliminary
Report was posted for public review and discussion (at
<http://www.dnso.org/dnso/notes/19990707.WGA1.html>). 

WIPO’s RFC process, which took place over a ten-month period, involved
extensive international consultation that was not possible in the few weeks
allotted to WG-A, and the WIPO Final Report may be considered to represent a
consensus of most interested stakeholders.  WG-A was aware of this fact and
took it into account in its own consultation process and in the preparation of
its Preliminary and Final Reports.  ICANN is therefore encouraged to consider
the dissents to WG-A’s recommendations in light of both the WG-A process and
the more extensive WIPO consultation process, and to decide whether these
dissents are relevant in this context to the course of action ICANN determines
it should take.  

It is the opinion of the pNC, as expressed in the vote, that the ICANN Board
of Directors adopt the following recommendations, giving effect in that way to
the White Paper requirement that the Interim Board consider "as soon as
possible" the recommendations on dispute resolution policy arising from the
WIPO process.  This is especially relevant, and urgent, at a time when,
following Amendments 11 tp 13 to the Co-Operative Agreement, and the
subsequent Registrar Accreditation Program, a number of accredited registrars
need assistance and guidance on these issues before entering the gTLD domain
name registration market and turning it into a competitive one.  


2.	WG-A’s Recommendations to ICANN Respecting the Implementation of the WIPO
Dispute Resolution Process

1) 	Generally, the recommendations of Chapter 3 of the WIPO Report relating
	to Uniform Dispute Resolution Procedures (UDRP) should be put into place as
	soon as possible after the ICANN Board meeting in Santiago, Chile, subject to
recommendation 4) below, and all Registrars should be required to adopt a
UDRP, namely, that recommended by WIPO, until such time as ICANN decides that
it should be replaced.


2)	The DNSO recommends the adoption and implementation of a uniform  Dispute
Resolution Policy.  Such  DRP should be uniform across current gTLDs, approved
by ICANN and implemented on a gTLD-wide level in a uniform way.


3)	Uniformity should affect both material or substantive rules as well as
procedural rules with an effect on substantive rights of the parties.  Some
minor, administrative, differences could be implemented in procedures followed
by different UDRP Service Providers. In this regard we recommend that ICANN
establish an accreditation process for DRP Service providers based on
objective criteria, and that all accredited DRP Service Providers should be
incorporated by the Registration Authorities in their Domain Name Registration
Agreements with registrants. 

4)	For at least the balance of 1999, this UDRP should apply only to bad-faith
/ abusive domain name registrations (cybersquatting) on a mandatory basis, but
without precluding the parties’ ability to litigate the dispute.  Further,
once proof of litigation is submitted to the WIPO panel, it should immediately
cease its decision-making process pending the outcome of the litigation. 
However, in response to a number of procedural and substantive concerns raised
during WG-A’s consultation process, it is recommended that WIPO be requested
to clarify the following issues listed below, and that its recommendations and
conclusions in relation to these issues should then be put back before ICANN
for evaluation by way of this, or another WG established for this purpose, for
a two week period, before being implemented.  However, this should not delay
implementation of the WIPO UDRP:  

a)	Establishing a "user’s guide" to the arbitral process, possibly to be
tested on focus groups prior to widespread implementation of the WIPO UDRP;

	b)      	The need to address the situation wherein a domain name registrant
who has been unsuccessful in the ADR process is effectively prevented from
"appealing" the result in a court due to the absence of a cause of action in
contract, tort, regulation, statute or constitutional right.  It was noted
that there is an imbalance in the WIPO process in that an unsuccessful
complainant will always be able to judicially challenge an ADR result by
virtue of the jurisdiction of the registry being imposed over the dispute by
the WIPO Report;

	c)	The need to re-examine and possibly refine the procedural timetable with
respect to notice of commencement of proceedings and the prescribed period in
which to submit a response.   While the notice provisions should not be
substantially changed or the response time extended at this time, it is
recommended that WIPO be asked to develop criteria for reasonable grounds upon
which an extension of time for response may be requested by the registrant;

	d)	In response to the need to clarify the arbitrators’ duty to ascertain the
applicable law in a dispute and to apply it, WIPO should be asked to consider
the development of an independent set of rules for the UDRP that is not based
on civil or common law, and that does not rely on any existing statute or body
of national case law;

	e)	The need to more clearly articulate the standard of proof in paragraph 171
of the Final Report, and associated sections of Annexes IV and V.

	5)	It is recommended that early in 2000 *, WIPO should be asked to provide a
timetable in which it can make available its UDRP with an adequate number of
arbitrators from a number of different countries who speak a cross-section of
languages, trained in online arbitration, making it possible to offer these
dispute resolution services on a voluntary basis to disputants having
trade-mark / domain name disputes.  It is recommended that such voluntary
dispute resolution shall not preclude access to courts unless both parties to
the dispute contract out of such access, in which case the results of the
online dispute resolution process will be final and binding.

* WG-A Co-Chairs Note:	The insertion of the 2000 time frame was one point
where there was a lack of unanimity among the members of the pNC.  Even though
the specific date was approved by the requisite majority, it is felt that the
recommendation may be amended in accordance with the expressed concerns to
replace the 2000 time frame with "as soon as ICANN considers it reasonable and
practicable" without materially altering the underlying substance of this
recommendation.  The original intent was to allow for a period of time after
implementation of the UDRP during which its operation could be evaluated and
any shortcomings addressed. Based on this experience and any required
modifications, the UDRP could be expanded to non-cybersquatting type disputes
on a voluntary basis.  


Respectfully submitted:

Members of the pNC.


 Supporting Documentation

In further accordance with Article VI-B, Section 2 (d) of ICANN’s Bylaws, the
following materials and information about the WG-A process are provided to
assist the ICANN Board in its review of WG-A’s recommendations:

A)	Final Report of WG-A		

B) Dissenting Opinions from the Vote of the pNC		

C)	Statemnt form Jon Englund, pNC member,  relating to the vote

D)	Comments to the Preliminary Report RFC and Final Report

E)	Report on the Formation of WG-A 				

F)	Personal Comments from Jonathan C. Cohen, Co-Chair of WG-A


 A) Final Report of WG-A

WG-A’s recommendations, along with explanatory commentary are contained in the
following authoritative text of the Final Report of WG-A to the Names Council,
which was considered by the pNC for its vote on July 30 - August 3, 1999 and
posted at <http://www.dnso.org/dnso/notes/199990729.WGA-report.html>.

We encourage the ICANN Board to review the full Final Report, as well as the
report on the formation of WG-A set out in section C) below, in order to
understand the context in which its recommendations (and the dissents thereto)
are made.


WG-A Final Report to the Names Council - July 29, 1999 - REVISED DRAFT *  

Introduction

The preliminary report of WG-A was posted on July 8, 1999 for public comment
after approximately three weeks of consultation.  At the time the preliminary
report was released, the point was made that this time frame was very short in
relation to the breadth and complexity of the subject matter.  It was also
noted that the scope of consultation and ability of people to participate was
affected by the time given to WG-A in which to prepare its report.  

The RFC period for the WG-A preliminary report was approximately two and a half
weeks, with submissions invited to be posted on the General Assembly (GA) list,
the WG-A list or the list for WIPO comments, all of which were accessible from
http://www.dnso.org.   WG-A notes that the number of comments received was very
limited, and this could be due to the short time period available for the RFC
process mandated by the deadline for submission of the Names Council’s report
to ICANN by July 31, 1999.  Of the few comments received, it is noteworthy that
the submissions by Professor Michael Froomkin represented a detailed and
thoughtful analysis, and have been of considerable assistance to WG-A in
formulating these recommendations to the Names Council.  

While some commentators have suggested areas where the WIPO process may be
refined, nothing has been said that differs significantly from the conclusions
drawn in the preliminary report, namely that the WIPO Uniform Dispute
Resolution Process (UDRP) should be implemented on a mandatory basis in respect
of disputes involving "cybersquatting" or "abusive / bad-faith" registrations.

Further, although there is concern about expanding the UDRP to other types of
disputes on a voluntary basis until such refinements to the process have been
made, there was no cogent argument presented that would militate against such
expansion, provided that the disputants’ recourse to the courts was not
precluded.


WG-A’s Recommendations to the Names Council:

1) Generally, the recommendations of Chapter 3 of the WIPO Report relating
to Uniform Dispute Resolution Procedures (UDRP) should be put into place as
soon as possible after the ICANN Board meeting in Santiago, Chile, subject to
recommendation 2) below, and all Registrars should be required to adopt a UDRP,
namely, that recommended by WIPO, until such time as ICANN decides that it
should be replaced.

2) The DNSO recommends the adoption and implementation of a uniform  Dispute
Resolution Policy.  Such  DRP should be uniform accross current gTLDs,
approved by ICANN and implemented on a gTLD-wide level in a uniform way.


Comment: This uDRP is to be viewed as an alternative to litigation, as a fast,
inexpensive and Internet-friendly alternative (at least in relative terms) to
wordlwide legal systems and jurisdictions.

The main goals of such a uDRP would be increasing legal certainty, providing a
solution in cases where multijurisdictional conflicts prevent actual
court-based dispute resolution and prevent forum shopping.  In this regard it
is viewed as an alternative, not a substitute for Court litigation, which
should remain open to the parties. 

Even if the DNSO remains open to consider gTLD-specific DRPs, or variations
thereof for future for certain new gTLDs in light of possible specific uses,
characteristics or charters, we recommend a uniform DRP across the current 
three gTLDs regarding both their undifferentiated use and the nature of the DRP
being recommended. Moreover, such a uDRP should be more than a series of
similar or even identical policies proposed by each registrar, a gTLD-wide
(or, in the current situation, a registry-wide) DRP approved by ICANN


3) Uniformity should affect both material or substantive rules as well as
procedural rules with an effect on substantive rights of the parties. Some
minor, administrative, differences could be implemented in procedures followed
by different uDRP Service Providers. In this regard we recommend that ICANN
establishes an accreditation process for DRP Service providers based on
objective criteria, and that all accredited DRP Service Providers should be
incorporated by the Registration Authorities in their Domain Name Registration
Agreements with registrants. 
.

Comment: Neither registries nor registrars should be involved in actual administration
of such policy. In this regard we believe that ICANN should accredit DRP
Service providers among specialized dispute-resolution institutions, according
to a set of objective criteria. Both material, substantive, rules and the
procedural ones that affect substantive rights of the parties (deadlines;
notifications; etc) should be uniform. But some room could be open for
differentiation in some procedural rules such as language; fees; and other
administrative aspects.


4) For at least the balance of 1999, this UDRP should apply only to
bad-faith / abusive domain name registrations (cybersquatting) on a mandatory
basis, but without precluding the parties’ ability to litigate the dispute. 
Further, once proof of litigation is submitted to the WIPO panel, it should
immediately cease its decision-making process pending the outcome of the
litigation.  

However, in light of the procedural and substantive concerns enumerated below
that have been expressed by Respondents to the WG-A RFC process, it is
recommended these concerns should be referred back to WIPO for its
reconsideration for a short, thirty day period.  WIPO should be asked to call
for an expert group of arbitrators and IP practitioners to work with it on an
urgent basis to clarify the procedural implications of these concerns.  WIPO’s
recommendations and conclusions in relation to these issues should then be put
back before ICANN for evaluation by way of this, or another WG established for
this purpose, for a two week period, before being implemented.  However, this
should not delay implementation of the WIPO UDRP.  

The concerns which have been identified as lacking in substantive specificity
or adequate procedural safeguards, and which should therefore be revisited by
WIPO include the following:  

           
        a)      The desirability of establishing a "user’s guide" to the
arbitral process, possibly to be tested on focus groups prior to widespread
implementation of the WIPO UDRP, in view of the fact we have no meaningful
experience to date with international online arbitration from which to seek
guidance on questions such as:  how arbitrators are to make credibility
determinations based on paper records, which are possibly generated by parties
who may be presenting their case in a language other than their own;  how to
deal with situations where one party is represented and the other is not, a
party fails to frame its case properly or does not have sufficient resources to
do so.

WG-A considers that this point is well taken, however we suggest that we may
rely to some degree on the experience of WIPO in multi-national, multi-lingual
dispute resolution.  Nonetheless, WG-A supports in principle the idea that the
implementation process should include as a prerequisite, the request to WIPO
that it consider the formulation of such an arbitral "user’s guide".  


        b)      The need to address the situation wherein a domain name
registrant who has been unsuccessful in the ADR process is effectively
prevented from "appealing" the result in a court due to the absence of a cause
of action in contract, tort, regulation, statute or constitutional right.  It
was noted that there is an imbalance in the WIPO process in that an
unsuccessful complainant will always be able to judicially challenge an ADR
result by virtue of the jurisdiction of the registry being imposed over the
dispute by the WIPO Report.

One suggested solution to this problem which WG-A agrees merits further
consideration, is the requirement that a complainant enter into a contract with
the registrant (or the arbitral institution in a jurisdiction that recognizes
third party beneficiary agreements) as a condition of initiating ADR, that
provides for consent to be sued in the jurisdiction where the registrant is
ordinarily resident, and in the jurisdiction where the subject registrar is
located (assuming both parties do not agree to voluntarily contract out of the
right to subsequent litigation).  


        c)      The need to re-examine and possibly refine the procedural
timetable with respect to notice of commencement of proceedings and the
prescribed period in which to submit a response.  

The potential for unfairness, or abuse of WIPO’s rules governing notice and
time for response include the following:  

                        date of commencement of proceedings is the date on which
the arbitration service provider receives the complaint, rather than the date
of actual or constructive notice of the complaint by the registrant;

                        ten day period within which a response to a notice of
proceedings is to be filed and the possible difficulties such a short time
period may cause a registrant in finding representation, collecting evidence
and preparing the defence;

                        absence of any requirement on the part of the
complainant to contact the registrant prior to filing its complaint, or to
allege such contact.  

WG-A agrees that these are valid concerns, but does not at this time recommend
changing the notice provisions, or extending the response time period.  One of
the greatest advantages of the Internet as a commercial and communications
medium, and simultaneously one of the greatest challenges it poses to
intellectual property rightholders, is the speed at which transactions and
transmission of information takes place.  The tremendous growth and success of
the Internet has been due to the ability of its users to embrace and adapt to
this pace and the fundamental rationale behind the WIPO UDRP is its ability to
arbitrate disputes as efficiently, quickly and inexpensively as dictated by
this unique medium.  

However, WG-A agrees that WIPO should be asked to refine the notice provisions
to take into account the foregoing concerns by possibly requiring the notice
to: be in the language indicated as the registrant’s preference in the
registration agreement;  clearly outline the steps the respondent should take
in preparing its defence; recommend to the respondent that it should seek the
advice of counsel or an experienced arbitrator; and allow the respondent to
seek a brief extension of time, retroactively if necessary,  if it can show
reasonable grounds for requesting same.  

At this stage, it is the belief of WG-A that it is better to work out criteria
for the reasonable grounds upon which extensions of time may be requested by
the registrant, and to allow arbitrators to exercise their discretion in
considering these grounds to grant extensions where the request is made in good
faith, than to extend the time limits in general.  Such criteria could
include:   differences in the parties’ respective economic resources, degree of
industrialization of the parties’ respective countries, the necessity for and
difficulty in obtaining translations of documents, or familiarity of the
parties with arbitral proceedings.  This is not an exhaustive list.  


        d)      The need to clarify the arbitrators’ duty to ascertain the
applicable law in a dispute and to apply it (paragraph 176 of the Final Report
and paragraph 15 of Annex IV).

WG-A agrees that this suggestion is important in the short term and recommends
that WIPO be asked to revisit these sections of its Report.  However, in the
long term, WG-A recommends that WIPO be asked to consider developing an
independent set of rules for its UDRP that is not based on civil or common law,
and that does not rely on any existing statute or body of national case law.

        e)      The need to more clearly articulate the standard of proof in
paragraph 171 of the Final Report, and associated sections of Annexes IV and V.

5)      It is recommended that early in 2000, WIPO should be asked to provide a
timetable in which it can make available its UDRP with an adequate number of
arbitrators from a number of different countries who speak a cross-section of
languages, trained in online arbitration, making it possible to offer these
dispute resolution services on a voluntary basis to disputants having
trade-mark / domain name disputes.  It is recommended that such voluntary
dispute resolution shall not preclude access to courts unless both parties to
the dispute contract out of such access, in which case the results of the
online dispute resolution process will be final and binding.


Conclusion

In summary, nothing has come out of WG-A’s work or the RFC that suggests
further delay is necessary in the implementation of WIPO’s UDRP.  Clearly some
clarification is required with respect to the items mentioned hereinabove, and
WG-A recommends that WIPO should be asked to work with a panel of international
intellectual property and arbitration experts in reconsidering these issues,
and to submit its suggestions for addressing them on an urgent basis.  The
overall time frame for implementation of the UDRP should not however, be
delayed.  

We also recommend that WIPO be asked to be ready to extend its UDRP process on
a voluntary basis to other disputes as early as possible in 2000.

Finally, we recommend that WIPO be requested to continue the work begun during
the IAHC process in relation to the development of a multijurisdictional,
online dispute resolution process which could in time, build on the experience
gained through use of the UDRP as it currently stands, and become the quick,
efficient, and reliable alternative dispute resolution method of choice for all
types of intellectual property disputes on the Internet.  

Prepared by:
Jonathan C. Cohen
Amadeu Abril i Abril  
Co-Chairs, WG-A
 B) Dissenting Opinions from the Vote of the pNC

i)	Dissent submitted by J. William Semich (ccTLD):

To be specific on what I am *not* voting for:

 	Community consensus does not exist for Recommendation 1, which recommends
that the UDRP be put in place as soon as possible after the ICANN Board
meeting in Santiago, Chile, and that *all* Registrars should be required to
adopt the UDRP recommended by WIPO; I am not voting to forward the
recommendations of item 1 to the ICANN Board as having community consensus support.

 	Community consensus does not exist for the language in the three paragraphs
in the CONCLUSION, which recommends that the overall time frame for
implementation of the UDRP should not be delayed, and community consensus does
not exist for the recommendation that WIPO be asked to extend its UDRP process
on a voluntary basis to other disputes as early as possible in 2000, and
community consensus does not exist for the recommendation that WIPO be
requested to continue the work begun during the IAHC process. I am not voting
that the items in the conclusion be forwarded to the ICANN board as having
community consensus support.


ii)	Dissent submitted by Don Telage, David R. Johnson and Phil Sbarbaro (gTLD):

PARTIAL DISSENT:

1) Procedural Problems. There is no way to determine whether the
recommendations presented here from WG-A represent a "community consensus
recommendation" without at least significant input from the General Assembly.
Although the gTLD constituency has voted affirmatively, and supports the
proposal in general, this procedural lapse is significant. 

2) Partial Dissension. The gTLD constituency agrees in general that the
recommendations of Chapter 3 and Annex IV & V of the WIPO report of April 1999
should be implemented as soon as possible ( Recommendation #1.), in a
generally uniform manner across the current global TLDs ( Recommendation #2).
We agree that uniformity should involve the scope of the dispute, the timing
and procedures involved, and the remedies provided (Recommendation #3). We
further agree that the initial scope should be limited to "abusive
recommendations" as defined by the WIPO report (Recommendation #4). Finally,
WIPO should be encouraged to provide further expertise ( Recommendation #5). 
We dissent and therefore disagree that any administrative dispute resolution
(ADR) process should be mandated directly from ICANN upon any or all
registrars, but should flow from the contractual obligations between registry
and registrar. No process should be mandated by any entity, ICANN or registry,
until those registrars who contractually bind their registrants to the process
are legally satisfied with the procedures involved, and have given adequate
notice to their registrants. ICANN will not incur any liability if these
procedures are unfair, improperly implemented or inadequately staffed
(Recommendation #1). Further, such ADR procedures, while uniform in most
aspects, should allow for variance in fees, payment, panel providers, and
involvement of the registrars, to the extent such registrar is willing to
accept the possibility of liability in the process. ICANN should not be called
upon to establish any accreditation process for panel providers but should
leave it to the private sector (Recommendations #2 and #3). As clearly
enumerated in Recommendation #4, substantial procedural problems remain to be
addressed by the industry of registrars who will operate with these
procedures. To proceed too quickly is to risk the failure of the procedures,
and to destabilize domain name registration. Registrars should be given the
time to draft and implement a practical ADR process based on real world
experience with registration.


iii)	Dissent submitted by Caroline Chicoine (IPC):

To begin with, the voter wishes to make clear that her votes were made with
the inderstanding that the references to the term "arbitratration" were meant
to refer to "administrative dispute resolution procedure" as set forth in the
WIPO final report.

With respect to recommendation number 4, while the voter believes there is
community consensus that the UDRP should apply only to bad-faith/absuive
domain name registrations (cybersquatting) on a mandatory basis, she does not
believe there is community consensus that it should be expanded or that there
be a deadline by which such expansion should take place (see WGA comment
archived).  It is
recommended that this issue be referred back to WIPO and/or a working group
for further consideration.

With respect to the comments and section a-e, the voter wishes to emphasize
that there is community consensus that despite these comments and concerns,
implementation of the WIPO fina report shall not be delayed.  In other words,
consideration of these comments and concerns by WIPO and/or an additional
working group and implementation of the WIPO final report with respect to
dispute resolution should proceed concurrently.

With respect to recommendation 5, the voter believes there is community
consensus that UDRP be available on a voluntary basis for disputes outside of
bad-faith/abusive domain name registrations, but not with respect to the
recommended time frame for the implementation of same.


 C) Statement form Jon Englund on the Vote of the pNC 

 I spent last weekend transitioning between two jobs, and found out
about the vote after the deadline had passed.  I did not get reconnected to
e-mail until after the vote had been completed.

As a member of the commercial/business constituency, I would have supported
all of Working Group A's recommendations, and encourage the ICANN Board to
ratify them.

Sincerely,

Jon Englund
Director, Public Policy
Excite@Home

Business & Comercial Constituency Representative
DNSO provisional Names Council
 D) Comments to the Preliminary Report RFC and Final Report

WG-A comment archives may be found at:

<http://www.dnso.org/wgroups/wg-a/Archives/index.html>
<http://www.dnso.org/wgroups/question-b/Archives/index.html>.

Comments to the Final Report are archived at:

<http://www.dnso.org/dnso/dnsocomments/comments-wipo/Archives/index.html>


The full text of comments and dissents submitted to WG-A can also be found
throughout the GA archives on the DNSO web site at 

<http://www.dnso.org/clubpublic/ga/Archives/index.html>.
 E) Report on the Formation of WG-A (from WG-A’s Preliminary Report - full
text at <http://www.dnso.org/dnso/notes/19990707.WGA1.html>)

At the conclusion of its Berlin meeting on May 27, 1999, the ICANN Board
adopted a number of resolutions, including a Resolution on the Report of the
World Intellectual Property Organization (WIPO). This Resolution provides for
the following, in part:

"WHEREAS, in the White Paper the U.S. Government called on the World
Intellectual Property Organization (WIPO) to develop recommendations regarding
trademark disputes concerning domain names; 

WHEREAS, on April 30, 1999, WIPO submitted a report to the ICANN Board
containing numerous recommendations that resulted from an extensive
consultative process; 

WHEREAS, the first ICANN-accredited registrars (testbed registrars), are
preparing to introduce competition in the provision of domain registration
services and accordingly are required soon to implement dispute resolution
policies; 

....

FURTHER RESOLVED, the ICANN Board refers the recommendations in Chapter 3 of
the WIPO report (with associated annexes) to the ICANN Domain Name Supporting
Organization (DNSO) for recommendations the DNSO [sic], to be submitted to the
ICANN Board by July 31, 1999; 

FURTHER RESOLVED, the ICANN Board requests that by July 31, 1999 the DNSO
submit to the Board any other recommendations the DNSO may have concerning a
uniform dispute resolution policy for registrars in the .com, .net, and .org
TLDs; "

 

The Provisional Names Council (pNC) held its first informal meeting in Berlin
on May 27, 1999 at which Jonathan Cohen was asked, as the Interim President of
the Intellectual Property Constituency (IPC), to serve as "focal point" for an
online discussion on Chapter 3 of the WIPO report, pending the formation of a
formal Working Group (WG) to deal with the issue, by the pNC at its next,
formal meeting.

On June 2, 1999 Mr. Cohen distributed a request for comments among members of
the IPC and other pNC reps, (for re-distribution within their respective
constituencies) asking that a dialog be opened and comments on Chapter 3 of
the WIPO Report be circulated among the members of the DNSO constituencies.
Respondents were specifically requested to not merely reiterate comments
submitted to WIPO during its own RFC process, as those comments were reviewed
and incorporated into the results of that process, but to make an effort to
revisit and amend any prior` submissions in view of recent developments. 

On June 2, 1999, Mr. Cohen also sent a request to all members of all
constituencies (through the respective pNC representatives) for the submission
of names of all those interested in participating in the WG on Chapter 3 of
the WIPO report. On June 4, 1999, Mr. Amadeu Abril i Abril was asked to
participate on behalf of the Registrar
constituency as co-chair of this WG. 

On June 8, 1999, Mr. Cohen again addressed the other members of the pNC and
circulated the list of individuals from the IPC who had volunteered to
participate in this WG to date, and reiterated the request for volunteers from
the other constituencies. To initiate and/or facilitate discussion, he further
provided some commentary on the various schools of thought with respect to
WIPO’s role in dispute resolution on the Internet, and formulated four
questions for discussion to focus the WG’s inquiry relating to Chapter 3 of
the WIPO Report.

The first formal pNC meeting was held by teleconference on June 11, 1999, by
which date a list of volunteers for this WG from the various constituencies
had been compiled. At the meeting, WG-A was formally recognized by the pNC to
address the issue of Chapter 3 on Dispute Resolution of the WIPO Final Report.
The questions proposed by Jonathan Cohen as the basis for WG-A’s inquiry were
accepted. WG-A was initially composed of fifteen members, including co-chairs
Jonathan Cohen and Amadeu Abril i Abril. Results of this NC meeting, including
the initial list of
members were posted at <www.dnso.org/DNSO/notes/19990612.NCtelecon.html> on
June 12, 1999. It was further announced therein that: the WG was still open to
members of constituencies that were not yet represented in the WG and to other
experts invited by the co-chairs; that WG-A must present a report by July 7th
which would be posted on the DNSO website for public comment until July 24th;
and that after that date, with the report and the public comments, the
provisional Names Council will prepare a report that it will send to the ICANN
Board on July 31st, the deadline set by ICANN. 

WG-A members were assigned on June 14, 1999 to sub-groups, each of which was
responsible for one of the four discussion questions. The initial four
questions and sub-group members were the following:

Question (a)

Should the WIPO dispute resolution process be confined to cybersquatting /
cyberpiracy, or should it be considerably expanded?

Peter Dengate Thrush
Jon Englund
Jonathan Cohen


Question (b)

Should there be a standard dispute resolution process throughout all
Registrars / Registries?

Amadeu Abril i Abril
Randy Bush
Hirofumi Hotta
Ken Stubbs
Marylee Jenkins
Keith Gymer

Question (c)

Should the dispute resolution process be voluntary or mandatory or a
combination of both?

Mike Heltzer
David Maher
Ted Shapiro
Luis H. de Larramendi


Question (d)

Should there be some method for contracting out of the right to seek a court
ruling if one undertakes to submit to the dispute resolution process?

Susan Anthony
Mark Partridge
Dr. Willie Black
Kathy Kleiman.


The guidelines circulated by Mr. Cohen to the sub-group leaders and members
for carrying out their work were the following:

1.	Immediately contact others in the group and agree on the rules, tasks and
timetables for completing research and providing an opinion on the question. 

2.	If it is believed to be appropriate, subdivide or add a question to be
answered. 

3.	Real effort should be made to seek out opinions from groups, individuals,
regions or organizations that have not been previously canvassed. 

4.	Review and briefly comment on the opinions given in the WIPO RFC’s and
review the WIPO commentary and conclusions to determine if there is a problem
with either in terms of consistency or otherwise, and if so, indicate clearly
and concisely what the problem is and why. 

5.	Assess whether there is a WG sub-group consensus, and if so, give it. If it
differs from the WIPO recommendations, indicate why, giving the basis of the
difference, and if there is minority view, provide this also with the reasons
for the view and/or why it differs from the majority view. 

6.	If possible, draft the recommendation to ICANN. 

7.	WGs are not limited to seeking opinions from DNSO members only. It is
important to canvass as broad a cross-section of opinion as possible,
particularly from participants outside of North America and in view of the
large number of individuals and organizations that were already consulted
during the WIPO process. 

8.	The ultimate goal is to define a WG consensus on these four questions that
is based on a broad cross-section of an informed group of people who can do
some novel and independent research on these issues. 

9.	Emphasis on new ideas in relation to the four questions.

 
The second pNC meeting was on June 25, 1999 in San Jose, California at INET
‘99. Among the items on the agenda (posted at http://www.dnso.org/DNSO/notes
/19990625.NCsanjose-up.html) was a progress report on WG-A.

With respect to WG-A’s progress as of June 25, Mr. Cohen reported a limited
response to his June 22, 1999 request for sub-group status updates, with the
exception of sub-group (c). In the first ten days of the WG’s operation,
certain administrative and procedural difficulties appeared to be causing
delays in the sub-groups’ progress. Mr. Cohen indicated that the ICANN Board
had been made aware on June 22, 1999 of the problems that may be caused by the
accelerated schedule ICANN had imposed upon WG-A. 
There was consensus at the pNC meeting that although WG-A had been asked to
complete its mandate within an extremely short time frame and without a set of
procedural guidelines or rules that would greatly facilitate all aspects of WG
activity, the balance of opinion was in favour of WG-A proceeding with its
work to the best of its ability in the time allowed, which it has done. 






 F) Personal Comments from the Co-Chair of WG-A- Jonathan C. Cohen

I think it is appropriate as the co-chair of WG-A to offer some personal
comments on this process, having worked with the other members of the WG and
the pNC in formulating these recommendations.  

There is a reality to the WG-A consultation process which should be taken into
account by those who would criticize the results of its study, and which was
repeatedly pointed out to the WG-A participants as well as the members of the
GA who were called upon to make submissions on the Preliminary Report.  This
process was not bottom-up; it was a top-down process starting from ICANN.  It
was not suggested by a constituency.   The timetable was set by ICANN at a
time when only a partial complement of the pNC was in place, and some of the
constituencies of the DNSO, as well as its GA were amorphous at best.  These
factors inevitably influenced the extent of the work that could be done by
WG-A, as well as the support it received both internally from the DNSO and
outside participants.  

I had made clear at the time of WG-A’s study that attracting significant
participation, or even attention to this study, would be difficult, and
therefore the amount of work done was not extensive.  On the other side of the
coin, the work done by WIPO in its international consultation and RFC process
was extensive and lengthy.  A broad cross-section of stakeholders, both
organizations and individuals, participated during the ten-month process and
submitted comprehensive comments.  WG-A’s work should be evaluated in this
context, and the possibility considered that many people who had participated
in WIPO’s process simply felt they had nothing further to add to the WG-A
study.  

While I recognize that the pNC and the DNSO organizational process is still
not complete, and some people, both within the DNSO and other observers, feel
that broader participation in the evaluation of Chapter 3 of the WIPO report
is required, I submit that such further evaluation is unnecessary at this
time.  Based on my experience of the past two years with respect to the
various international meetings and hearings on the development and
implementation of a dispute resolution procedure for domain name disputes, I
believe that further extending the review of Chapter 3 of the WIPO Report
would not result in any meaningful increase in participation and input, given
the extensive responses submitted to date.

Certainly the recommendations we are submitting to ICANN do not reflect
unanimity, but there does seem to be a general consensus based on both WIPO’s
and WG-A’s RFCs, with some notable dissents.  Both the recommendations and
dissents indicate that the UDRP proposed by WIPO is generally acceptable and
should be implemented, but clearly subject to further refinement and
discussion.   Most of the objections relate to the fact that the pNC is not
complete, or the GA did not, or could not participate.  This may be relevant
to the weight of WG-A’s "consensus", but may be irrelevant with respect to
WG-A’s conclusions.  This must be left to ICANN.  Many believe the time has
come to put the UDRP into practice and allow these further refinements to be
based on actual feedback from real-time experience with the process, rather
than on theoretical argument.  The UDRP will either be successful or it will
not; it will either be attractive and used by disputants, or it will not.  
Further discussion will not determine which eventuality will occur.  

The foregoing are my personal conclusions based on a review of the RFCs of
WIPO and WG-A, and the WIPO report.  They are not intended to be taken as the
views of the IPC, or the other members of the pNC.

Thank you for your time and consideration of these comments.

Respectfully, 

Jonathan C. Cohen
Co-Chair, WG-A
Interim President - IPC
pNC Representative - IPC

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