On September 24th ICANN issued a Request for Information (RFI) to solicit bids from potential Uniform Rapid Suspension (URS) providers. The announcement can be found at http://www.icann.org/en/news/announcements/announcement-8-24sep12-en.htm and a link is provided to the RFI itself. Qualified arbitration providers have until November 20th to submit a response, and ICANN hopes to publish a list of selected providers by February 28, 2013.
ICA has been asking ICANN to commence URS implementation for more than a year, and has been generally skeptical of unsubstantiated feedback from WIPO and NAF that they cannot arbitrate slam-dunk, know-it-when-you-see-it infringement cases for the desired price point of $300-500 dollars. So we are pleased that ICANN is finally getting the ball rolling and that we will get some market price testing of the true cost of implementing URS – but in part this depends on ICANN doing some meaningful outreach to assure that qualified arbitration providers beyond the ranks of current UDRP providers are made aware of the opportunity and encouraged to participate.
While the RFI makes mention of the work of the Implementation Recommendation Team (IRT) in creating the URS as a narrow supplement to the UDRP, it makes no mention of the subsequent work of the Special Trademark Issues – Recommendation Team (STI-RT) in making further modifications that enabled the URS to achieve ICANN community consensus and GNSO Council and Board approval.
One of the key recommendations of the STI-RT is that URS providers be placed under contract. This would not only correct a glaring omission in the accreditation of UDRP providers — who are empowered by ICANN to extinguish or transfer domains without any enforceable limitations on those powers – but would also provide a useful model for subsequent procedural UDRP reform. We have carefully reviewed the RFI and while it speaks of a “comprehensive agreement” and of “negotiations” with prospective providers it nowhere makes clear that selected URS providers will be required to enter into a binding and enforceable contractual agreement with ICANN. We intend to seek clarification of this critical issue at the upcoming Toronto meeting.
On the question of URS pricing, which has been used by some brand interests as a rationale for wholesale reopening of the substantive elements of the URS, the RFI says little other than that respondents should submit their “best offer” and that the URS was designed “to be available for a limited fee (in the order of 300-500 USD per case)”. It also notes that “Respondents should be aware that the ICANN community will continue to engage in discussions on the requirements” – but we think that considering any modification of the carefully negotiated and balanced URS requirements before we have market testing of their costs is putting the cart before the horse. Further, even if it turns out that reasonable administration of the URS will cost more than the desired $3-500 price range – but surely it should be less than the cost of a single panelist UDRP – there has been growing sentiment in many sections of the ICANN community that ICANN should consider some short-term subsidization of URS proceedings out of the $350 million it has collected in new gTLD application fees.
Aside from our questions about contracts and pricing, we are generally pleased by the fact of the RFI’s publication and its contents.
In particular:
- · The Objectives section reinforces the separate character of the URS from the existing UDRP, noting that “The process will focus strictly on cases in which there is no genuine contestable issue as to the infringement and abuse that has taken place while balancing against the potential for abuse of the URS process.”
- · The Specific Requirements list includes a number of items of keen importance to registrants, including “Establishing standard evaluation analysis procedures for consideration of a URS complaint”; “Integration with the Trademark Clearinghouse or other centralized databases to ensure all URS decisions are recorded and searchable”; “Establishing an initial examination process to validate complaints prior to moving to a “freeze and notice” stage”; “Establishing a process to monitor URS abuse”; and “Establishing an Examination Appeals process”.
While overdue, we are happy to see this RFI go public and hope that ICANN will do its utmost to ensure responses from multiple entities, including some from beyond the ranks of current UDRP arbitration providers.