Last week ICANN announced that the National Arbitration Forum (NAF) of Minneapolis, MN had been appointed to administer the new Uniform Rapid Suspension (URS) rights protection mechanism for new gTLDs. (http://newgtlds.icann.org/en/announcements-and-media/announcement-2-20feb13-en) The announcement raises more questions than it answers.
Despite the press announcement’s claim that NAF “has a proven track record boasting resolution of over 19,000 claims in 12+ years of administering UDRP cases” ICA has a far more jaundiced view of what its track record proves. One year ago ICA asked ICANN to conduct an investigation of NAF’s UDRP practices after two particularly horrendous decisions were rendered by its examiners (http://internetcommerce.org/NAF_UDRP_FAIL) – and the response we received from ICANN staff was quite unsatisfactory.
A recent study of NAF’s pattern of examiner utilization was also quite disturbing – “Of the approximately 4,144 cases between March 5, 2010 and July 4, 2012, 7 mainly NAF-appointed panellists were appointed to 1,921 or 46% of all cases. There are currently approximately 136 panellists on NAF’s roster. This means that 5% of panellists decided 46 per cent of cases.” (http://dnattorney.com/NAFdomainnamedisputestudy2012.shtml)
So here are some questions for which we do not find answers in ICANN’s press release:
· What will NAF charge to administer a URS case? We presume that it will fall within the $300-$500 range promised by ICANN for the URS, but the press release contains no information on this. It does note that NAF “has already developed, and is currently operating a TLD-specific rapid relief system” — but that system is administered for .XXX and NAF charges about the same fee for that as for a UDRP.
· How will “default cases” be handled by NAF? Under pressure from the GAC, ICANN’s Board arbitrarily reduced the time in which a registrant could respond to a URS notice from 20 to 14 days. Two weeks is not a lot of time for a registrant to understand what a URS entails, prepare a response or hire competent counsel to do so, and file it – especially when one considers that the complainant has had unlimited time to prepare its filing and can time its submission to holidays and other periods when responding may be delayed. One of the most debated matters in URS administration was what whether any substantive evaluation of the complaint should be undertaken when the registrant has not filed a response within fourteen days – the “default case” situation. While NAF had previously stated that it did plan to engage in some type of substantive evaluation we have no idea of what it has actually committed to in its application and whether it affords adequate due process to a registrant.
· Will other URS providers be appointed, and when? The press release implies that they will, with the headline stating that NAF is the “First URS Provider” and the release itself stating that NAF “will be one of multiple providers appointed to administer URS servic
es. The process will be similar to that of appointing UDRP providers in which consideration is given to achieving competitive provisioning and geographical spread of providers.” Yet we have been told by at least one other well-qualified applicant that it had been told by ICANN that it intends to have only one URS provider for the indefinite future.
· Will NAF – and any future additional URS providers – be placed under a standard and enforceable contract? ICANN likes to point to the work of the Special Trademark Issues Review Team (STI-RT) as a positive example of how implementation of policy should proceed. We also gave the STI-RT high marks for its output – but its work counts for naught if ICANN doesn’t implement it. Its final report was quite clear on this issue – a unanimous consensus that “ICANN should discourage forum shopping among URS service providers through its URS implementation and contracts”. (emphasis added – http://gnso.icann.org/issues/sti/sti-wt-recommendations-11dec09-en.pdf) For now it appears that NAF and ICANN are bound solely by a 2-page Memorandum of Understanding that fails to explicitly address any of the questions raised by NAF’s appointment, and which has no enforcement mechanism. (http://www.icann.org/en/about/agreements/partnership-mous/naf-mou-20feb13-en.pdf)
· Will ICANN take steps to assure that the same pattern of favoring a few examiners out of its entire roster will not be repeated in NAF’s URS administration? Again, the STI-RT was unanimously in favor of such steps: “Examiners within a service provider shall be rotated to avoid forum shopping. It is strongly encouraged that the URS service provider accept all credentialed and properly trained URS examiners…The URS Service Providers shall avoid “cherry picking” of examiners that are likely to rule in a certain way.”
· Finally, and perhaps most importantly, why was NAF chosen and other applicants rejected, at least for now? ICANN has explained nothing about which entities responded to its solicitation of bids to provide URS arbitration services or what criteria it used in selecting NAF. The community deserves to know why NAF, an entity that withdrew from arbitration of all consumer credit disputes after being sued in 2009 by the Minnesota Attorney General for “consumer fraud, deceptive trade practices, and false advertising” http://www.ag.state.mn.us/PDF/PressReleases/SignedFiledComplaintArbitrationCompany.pdf, and which continues to “cherry pick” a small number of favored examiners to decide almost half of its UDRP cases, was deemed the most worthy applicant to initiate administration of the URS.
ICA plans to raise these questions directly with ICANN on behalf of its members as well as all registrants in new gTLDs who may face a URS procedure in the future. If potential new gTLD registrants believe that they
face potential loss of use of their domains because they may be subject to an unprofessional and biased URS arbitration process it will dampen enthusiasm for domain registrations at new gTLDs generally.
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