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[nc-udrp] Re: ICANN UDRP Evaluation Task Force


Dear Mr. To:
 
First, in an effort to continue the openness and transparency of the Names Council Task Forces, I have courtesy copied the UDRP distribution list on this communication.
 
The Task Force is constituted to look at the UDRPs performance and certain specific issues.  A Terms of Reference was initially set up that sets forth those issue the TF is to consider.  I referenced the specific issues in my e-mail to you; however, I have listed below a link to the Terms of Reference located on the dnso.org website.
 
Our next call is Wednesday, December 4th at 15:00 UTC.  Therefore, I would ask that you let me know whether your organization wishes to participate before the middle of next week.
 
The URL for the Terms of Reference is:  http://www.dnso.org/dnso/notes/2001.NC-tor-UDRP-Review-Evaluation.html
 
J. Scott Evans
ADAMS, SCHWARTZ & EVANS, P.A.
jse@adamspat.com
PH:  (704) 375-9249
FX:  (704) 375-0729
----- Original Message -----
 
From: HKIAC
Sent: Wednesday, November 20, 2002 3:17 AM
Subject: Re: ICANN UDRP Evaluation Task Force

Dear Mr. Evans,
 
Thank you very much for your email. We are now liaising with our Beijing Office and will revert to you as soon as possible. 
 
Would it be possible to provide us with an URL for the UDRP Evaluation Task Force so that we can have a better understanding about the Task Force.
 
Thank you very much. 
 
Kind regards
Christopher To  
 
 
----- Original Message -----
Sent: Tuesday, November 19, 2002 10:14 PM
Subject: ICANN UDRP Evaluation Task Force

 
THE FOLLOWING MESSAGE IS AN ATTORNEY/CLIENT COMMUNICATION WHICH IS PRIVILEGED AND CONFIDENTIAL.  SHOULD YOU RECEIVE THIS MESSAGE IN ERROR, PLEASE CONTACT J. SCOTT EVANS AT ADAMS, SCHWARTZ & EVANS, P.A. BY CALLING (704) 375-9249 OR BY E-MAIL AT jse@adamspat.com.  PLEASE ALSO REMOVE ALL ELECTRONIC COPIES OF THIS MESSAGE FROM YOUR SYSTEM AND DESTROY ALL HARD COPIES.  THANK YOU IN ADVANCE FOR YOUR CONSIDERATION.

Dear Sirs:
 
My name is J. Scott Evans and I am one of the Intellectual Property Constituency's representatives to ICANN's Name Council which is charged with managing the consensus building process under the ICANN process.
 
In this role, I have been elected as the new chair of the UDRP Evaluation Task Force charged with reviewing the UDRP's performance over the last three years and providing the ICANN Board with a report.
 
To this end, our Task Force consist of a Provider representative and Panelist representative from each of the ICANN accredited dispute resolution providers.  When this Task Force was originally constituted, your organization was not an accredited provider.  However, now that your firm is an accredited provider, the Names Council has passed a resolution authorizing me to contact you and ask if you could appoint a provider and panelist representative to serve on this Task Force.
 
I have listed below an e-mail sent to the Task Force earlier which outlines the proposed strategy for moving forward.  Please review this and let me know if your organization can appoint two people to participate in this process.
 
Kind regards.
 
J. Scott Evans
ADAMS, SCHWARTZ & EVANS, P.A.
jse@adamspat.com
PH:  (704) 375-9249
FX:  (704) 375-0729

Dear All:

This message shall serve as my first official communication to the Task Force regarding moving this process forward.  I sent out a message earlier requesting a response regarding your continued participation in this Task Force.  From the responses I have received, I believe the following people wish to continue participating on this Task Force:

Caroline Chicoine, Jeff Neuman, Katrina Burchell, M. Scott Donahey, Ethan Katsh, John Berryhill, Mac Waldbaum, Dan Steinberg

The following person cannot continue:

F. Peter Philips - as a CPR provider representative

I have not heard from the following people (or if I have their response was erased during a computer glitch on my end):

Sarah Deutsch, Neil Dundas, Antonio Harris, Michael Palage, Dr. Joelle Thibault; Tim Cole, Erik Wilbers, Joon Hyung Hong and Graeme Dinwoodie.

If any of the above are still interested, please send me an e-mail to confirm your continued participation before November 13, 2002.

In addition, I note that Asian Domain Name Dispute Resolution Centre does not have a representative or panelist representative on this Task Force and I would like to offer an invitation to this organization to place a provider and panelist representative on the Task Force.  I think it would be valuable to have an Asian provider's perspective on the issues considered by this group.

Given that this Task Force finds itself caught between the old ICANN policy development process and the new PDP which is attached as Appendix 1 to the new ICANN by-laws adopted in Shanghai, I propose that we continue this Task Force on a hybrid basis.

My first proposal is that the Task Force aim to have a preliminary report consisting of an analysis of the survey results and the various papers which have been submitted to the Task Force by December 15, 2002.  Once this preliminary report is complete, I propose that we then take up the schedule set out in the new PDP with just minor modifications.  I have listed this proposed schedule below and I have highlighted the changes below:

d. Collection of Information.

1. Constituency Statements. The Representatives will each be responsible for soliciting the position of their constituencies, at a minimum, and other comments as each Representative deems appropriate, regarding the issue under consideration. This position and other comments, as applicable, should be submitted in a formal statement to the task force chair (each, a "Constituency Statement") within thirty-five (35) calendar days after presentation of the preliminary report. Every Constituency Statement shall include at least the following:

(i) If a Supermajority Vote was reached, a clear statement of the constituency's position on the issue;

(ii) If a Supermajority Vote was not reached, a clear statement of all positions espoused by constituency members;

(iii) A clear statement of how the constituency arrived at its position(s). Specifically, the statement should detail specific constituency meetings, teleconferences, or other means of deliberating an issue, and a list of all members who participated or otherwise submitted their views;

(iv) An analysis of how the issue would affect the constituency, including any financial impact on the constituency; and

(v) An analysis of the period of time that would likely be necessary to implement the policy.

e. Task Force Report. The task force, working with the Task Force chair, shall compile the Constituency Statements, preliminary report, and other information or reports, as applicable, into a single document ("Draft Task Force Report") and distribute the Draft Task Force Report to the full Names Counsel no later than the spring ICANN meeting. The task force shall have a final task force meeting within ten (10) days after the date of distribution of the Draft Task Force Report to deliberate the issues and try and reach a Supermajority Vote. Within five (5) calendar days after the final task force meeting, the task force shall create the final task force report (the "Task Force Report") and post it on the Comment Site. Each Task Force Report must include:

1. A clear statement of any Supermajority Vote position of the task force on the issue;

2. If a Supermajority Vote was not reached, a clear statement of all positions espoused by task force members submitted within the twenty-day timeline for submission of constituency reports. Each statement should clearly indicate (i) the reasons underlying the position and (ii) the constituency(ies) that held the position;

3. An analysis of how the issue would affect each constituency of the task force, including any financial impact on the constituency;

4. An analysis of the period of time that would likely be necessary to implement the policy; and

5. The advice of any outside advisors appointed to the task force by the Council, accompanied by a detailed statement of the advisors' (i) qualifications and relevant experience; and (ii) potential conflicts of interest.


As many of you know the terms of reference for this Task Force are established.  I have listed below those issues that we must tackle during the next very chaotic months:

                ∑         forum shopping

         publication of complaints and answers

         appeals

         reverse domain name hijacking

         quality of decisions

         speed of decisions

         precedential affect of decisions within and outside of UDRP

         costs

         continuity of decisions among and within panels

         res judicata effect of decisions within and outside the UDRP

         requirements for bad faith (i.e., domain name registration and/or use)

         fairness of Providerís supplemental rules

         ability to amend complaint

Task Force reviews results of questionnaire, as well as any third party studies directed to the UDRP including without limitation the Syracuse University study, the Max Plank Institute study and the Rose Communication study.  Based on the results of the questionnaire and those studies, the Task Force shall prepare a Report summarizing the areas identified as needing reform and the recommendations to implement such reform. 


While it has been suggested by Jeff Neuman that the survey results and/or the terms of reference are no longer timely, I disagree.  I believe the issues set out above still remain very relevant.  In addition, I think the survey results are a good snap shot of the community response to the UDRP and I think it is important that they are considered by this group.

I would like to have a conference call for this group on November 20th if at all possible.  To this end, I would ask that everyone let me know what time U.S. Eastern Standard time is most convenient for such a call.  We need to begin organizing and dividing up the work so that we can have ourselves a preliminary report for December 15, 2002.

I would also ask that each of you review my suggested strategy for moving forward and let me know if you have any major objections/suggestions for me.

I look forward to hearing from each of you very soon.

Kind regards.

J. Scott Evans
ADAMS, SCHWARTZ & EVANS, P.A.
jse@adamspat.com
PH:  (704) 375-9249
FX:  (704) 375-0729



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