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[registrars] Proposed Uniform Dispute Policy

Dear Jim:

In Washington, both Jonathan Cohen and myself raised our concerns about the
ability of the Complainant to always choose the Dispute Provider.

My concern is that there may be a significant cost disparity between the
various accredited dispute providers. This presents the Complainant with the
opportunity to select the more costly alternative to the detriment of the
domain name registrant.  Although Phil suggested that the cost of this
procedure be no more than $400, I saw no commitment by WIPO to keep the cost
this low. I believe this is important since WIPO stated at this meeting that
they were the only ones that have stepped forward to handle these types of
disputes at this time. In Washington WIPO never directly responded to Phil's
comment on cost, aside from a comment that they would like to keep the costs
to a minimum.  I believe this issue can be diffused if we just establish a
cost ceiling of no more than $500 for the entire process cradle to grave. It
is that simple.

I am concerned why this issue was not changed in the revised dispute policy
or why it was not even mentioned in your e-mail cover letter. I do not
believe that I was alone on this important issue. As you may recall, I
originally recommended a lottery type system where each dispute was randomly
assigned to any of the accredited dispute providers. However, after
reviewing this matter in further detail, I believe Jonathan Cohen's proposal
that the defendant be permitted to select the dispute provider is the only
equitable solution.

Best regards,

Michael D. Palage

-----Original Message-----
From:	owner-registrars@dnso.org [mailto:owner-registrars@dnso.org] On Behalf
Sent:	Friday, August 06, 1999 8:19 PM
To:	registrars@dnso.org; louis_l._touton@jonesday.com; jse@ackenspat.com;
daveg@netsol.com; jcohen@shapirocohen.com; arif.ali@wipo.int;
christoper.gibson@wipo.int; francis.gurry@wipo.int; erik.wilbers@wipo.int;
psbar@hanson-molloy.com; carl@oppedahl.com; froomkin@law.miami.edu;
bburr@ntia.doc.gov; krose@ntia.doc.gov
Cc:	lgaviser@register.com; slevi@skadden.com; rrodin@skadden.com;
Subject:	[registrars] Proposed Uniform Dispute Policy

 << File: 48586_1.DOC >> Attached is the most recent revision of the Domain
Name Dispute Policy
prepared by AOL and register.com.  The new draft reflects the significant
input we've received during the past few weeks, including at the WIPO
sponsored meeting in DC two weeks ago.

Our objective in this process has been to develop a policy that will be
voluntarily and uniformly adopted by registrars.  We have relied
on WIPO's proposed policy, but this policy does differ in some respects
(e.g., there is no exclusionary rule).

The current draft no longer includes a number of provisions (such as
disclaimer and indemnity provisions) that seem better placed in the
registration agreement, which will likely be different for each registrar.

The proposal also does not contain "procedural" requirements for dispute
resolution, which will be contained in the "rules of procedure" to be
attached to the policy.  The proposed policy allows the registrars to
"authorize" dispute resolution service providers of each registrar's choice.
Our hope is that all such providers will employ uniform "rules of
 (Such rules still need to be prepared. WIPO has moved this process along
considerably, but I'd be interested in hearing from anyone who cares to
contribute to developing a set of uniform rules.)

Our handling of several issues that were frequently cited in the comments we
received is as follows.

1. Revocation at Registrar's Discretion

    Some of the comments we received expressed concern over the provision
allowing registrars to revoke domain name registrations at their discretion.
On reflection, it does not seem that this provision is appropriately placed
in a dispute policy in any case.  A registrar who wishes to keep such
flexibility in its relationship with customers would include the provision
the registration agreement.

2.  Administrative Proceedings

    A point of confusion in our last draft was the "binding" nature of the
administrative proceedings -- i.e., whether the results of such proceedings
would be binding on the disputing parties and what role the courts would or
should play in such disputes.  In the current draft, the decisions of an
administrative panel are "binding" on the disputants in that the decisions
will be followed by the registrars.  However, either party may submit the
dispute to a court of competent jurisdiction for an independent, de novo
review of the dispute (or go to court before the initiation of an
administrative proceeding).  The draft policy includes a 7 day waiting
before a registrar implements an administrative panel's decision, in order
give a disappointed registrant the opportunity to go to court and challenge
the decision.

3.  Administrative Panel Standards

    Several comments suggested wording changes to the scope of the disputes
that are subject to the mandatory administrative proceeding.  This issue was
a heavily disputed issue during the WIPO reporting process and is being
addressed in the DNSO process.  To minimize the need for re-creating those
processes, we have elected to track the exact language of the WIPO proposal
given the care with which WIPO drafted the scope of the mandatory

4.  Transferability During a Pending Dispute

    There were a number of comments expressing concern about whether a
name should be transferable to a new registrant or between registrars during
a pending dispute.  The proposal is that a name may not be transferred to a
new registrant during a pending administrative proceeding (in order to avoid
transfers intended to evade an adverse decision) or during a pending court
arbitration proceeding, unless the new registrant agrees to be bound by the
decision in such proceeding.

    The proposal does not limit the ability to transfer a name among
registrars during a pending dispute, so long as the new registrar has a
policy honoring the decision in the pending proceeding under the originating
registrar's dispute policy.  This approach conflicts with the "Exhibit B"
transfer protocol distributed by NSI this week.  While we think the free
portability of domain names between registrars is the preferred approach --
both for competitive and logistical reasons -- in any case Exhibit B and the
registrars' dispute policy will need to be consistent on this point.

5.  Preliminary Determination

    An earlier draft policy included a "preliminary" determination as to
whether a complaint meets the pleading requirements of the policy.  This
provision has been removed from the policy, since it is an issue we think is
more appropriately dealt with in the "rules of procedure."

We thank all those who have contributed to this effort.

Jim Bramson
America Online, Inc.