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[wg-a] INTA Comments on WG-A Preliminary Report



INTA is a 121 year old, not-for-profit organization.  Since the Associations founding in 1878, membership has grown from 17 New York-based manufacturers to approximately 3,600 members from around the globe.  INTA would like to expressly thank the individual members of WG-A for their commitment of time and effort in further looking into the recommendations concerning dispute resolution that were set for in the WIPO Final Report.  As requested by WG-A, INTA's DNS Subcommittee has reviewed the WG-A report and would like to make the following comments:
 
QUESTION  (a):  Should the WIPO dispute resolution process be confined to cybersquatting/cyberpiracy, or should it be considerably expanded?
 
    OUR POSITION:   INTA agrees with the majority position identified in the WG-A preliminary report.  That is, INTA believes that the process should be confined to cybersquatting/cyberpiracy, at least for the time being. 
 
QUESTION  (b):  Should there be a standard dispute resolution process throughout all registrars/registries?
 
Sub-group (b) divided Question (b) into 4 questions:
 
    (i)  Do we need a uniform DRP at all?
 
    Sub-group (b) expressed a general preference for a UDRP, but with reservation of the right to go to court.  Sub-group (b) also noted Prof. Froomkin's concerns about the lack of appeal to court for the losing DN registrant.
 
    OUR POSITION on (b)(i):  INTA strongly believes that an uniform dispute resolution policy must be implemented.
 
    (ii) Does a DRP need to be gTLD-based or uniform across gTLDs?
 
        Sub-group (b) recommended "yes," although non-commercial gTLD could have a different ADR mechanism.
 
OUR POSITION on (b)(ii):  INTA agrees that there should a UDRP across all existing open gTLDs or those that are created.  That being said, INTA is fully aware that any UDRP developed for open gTLDs could require some modifications if so called "non-commercial gTLDs" or "chartered gTLDs" are introduced. 
 
    (iii)Does a UDP imply just uniform material rules or also procedural ones?
 
    Sub-group (b) seemed to feel a less compelling reason for procedural uniformity. 
 
 OUR POSITION: We adamantly disagree with Sub-group (b), at least with regard to all open gTLDs.  While INTA notes that there could be room for some very slight procedural variations (e.g., fees could be different or there may be different language requirements), we do not think that there should be procedural variations with regard to timing issues, notice issues etc.   In sum, INTA believes that any procedural variance should only relate to ministerial functions and not to procedures that would affect the substantive rights of the parties.
 
    (iv) Is a UDP compatible with multiple ADR service providers? Is a single ADR-SP a better choice?
 
    Sub-group (b) concluded that there could be one single provider or there could be multiple providers as long as each provider met certain criteria. There could be some accreditation criteria (cf. registrars).
 
    OUR POSITION: INTA believes that there can, and probably should be, multiple providers.  We also agree with the concept of accreditation, and urge that a registry/registrar should have to recognize any ICANN-accredited service.  We further agree that a list of accredited providers should be provided, e.g., in registry and registrar contracts.
 
     QUESTION  (c): Should the dispute resolution process be voluntary or mandatory or a combination of both?
 
    Sub-group (c) recommended that you still be able to go to court. 
 
    OUR POSITION:  INTA agrees with the conclusion of  Sub-group (c) that any ADR must be "semi-mandatory," i.e.,  INTA feels that the mechanism should be mandatory but that the ADR should not prevent the parties from going to court.  This is the position advocated in the WIPO Report when the Report recommends that parties should be allowed the option of participating in ADR or resolving a dispute in court.  While INTA is aware of the concern noted in the WG-A preliminary report that, in some judicial systems, a losing DN registrant would not be able to appeal an ADR decision to a court.  INTA believes that the WIPO recommendations do not guarantee parties that court review is available.  On the contrary, the WIPO recommendation merely recommends that parties having a judicial system allowing the review of ADR decisions should not lose such a right under any ADR system.  Similarly, the Final Report does not wish for the availability of ADR to preclude parties from going to court in the first instance.  Accordingly, WIPO recommended an ADR mechanism that is purely an "alternative" to court.  Any associated risks that may befall parties (i.e., the lack of a de novo appeal for the ADR decision) must be evaluated by the parties and counsel when deciding whether to pursue the ADR process or pursue an action in court. 
 
    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?
 
    
    OUR POSITION:  INTA strongly believes that the parties should have a retain the option of going to court.
 
Once again, we would like to express our gratitude to those individuals that have given so much to this process.  It is our hope that these comments will assist WG-A in finalizing its report for submission to the Names Counsel.  It is also INTA's sincere hope that WG-A will recognize the majority of support expressed for the WIPO recommendations relating to ADR for cybersquatting/cyberpiracy cases and we urge WG-A to encourage the Names Counsel to recommend that the ICANN Board call for the immediate adoption by all registries and registrars of an acceptable ADR procedure in such cases.
 
Sincerely,
 
J. Scott Evans, Chairman
DNS Subcommittee, a subdivision of
INTA Special Committee on the Internet