|Vote Open||Vote |
|Vote Close||Date of Submission||Staff Contact and Email||Statement Number|
|05.04.2013||Public Interest Commitments Dispute Resolution Procedure (PICDRP)||Adopted|
14Y, 0N, 0A
|Alan Greenberg (NARALO)||30.03.2013||09.04.2013||n/a||11.04.2013|
(ALAC Meeting in Beijing)
|n/a||11.04.2013||11.04.2013||Olof Nordling firstname.lastname@example.org||AL/ALAC/ST/0413/5|
(*) Comments submitted after the posted Close Date/Time are not guaranteed to be considered in any final summary, analysis, reporting, or decision-making that takes place once this period lapses.
FINAL VERSION TO BE SUBMITTED IF RATIFIED
FINAL DRAFT VERSION TO BE VOTED UPON BY THE ALAC
The ALAC is deeply concerned by the proposed enforcement mechanism for the new gTLD Public Interest Commitments, which appears to be ineffectual by design.
Although described as a Dispute Resolution Procedure, the Public Interest Commitment (PIC) was introduced to the community as a process that could be “enforced by ICANN."
Many in our community were led to believe that “enforced by ICANN” meant that the PIC process would include an ICANN Compliance connection and that ICANN itself would carry out the enforcement.
As the PIC is currently presented, the process:
- Requires possibly significant fees with magnitudes that are currently unknown;
- Requires that the complainant demonstrates measurable harm due to the violation;
- May be filed by ICANN, but without any obligation for it to do so.
Given that no exception is noted in the PIC process, ICANN could presumably only file an objection if ICANN itself could demonstrate that it was measurably harmed. This situation recalls the sad period when ICANN applied RAA sanctions only when it was not paid.
The UDRP, where decisions are outsourced like those of the proposed PICDRP, was deliberately designed to operate independently – the opposite of "by ICANN" as claimed by ICANN for the PIC. And unlike trademark claimants using the UDRP, members of the public should not be expected to have financial – or even direct – interest in order to complain when PICs are not being fulfilled.
The ALAC believes that ICANN made a serious mistake in not requiring all new gTLD applicants to stand by their application promises in the form of contractual compliance. We expected that the PIC, despite being a late addition to the application process, would be used as a crucial mechanism to uphold the interest of the public and the end user. As proposed, the PIC implementation is weak with features that actively discourage and penalize complainants. The PIC Dispute Resolution Procedure as it is currently presented provides little leverage for the Global Public Interest and it is therefore unacceptable. We firmly believe that ICANN must bestow upon the PIC process the true force of responsible and competent enforcement.
FIRST DRAFT SUBMITTED
ALAC Statement on Public Interest Commitments Dispute Resolution Procedure
The ALAC is disappointed in the proposed mechanism for enforcement of the new gTLD Public Interest Commitments.
Although described a dispute resolution procedure, the process was introduced whereby a Public Interest Commitment (PIC) could be “enforced by ICANN” (http://www.icann.org/en/news/public-comment/base-agreement-05feb13-en.htm).
When announced, many in the community presumed that “enforced” included an ICANN Compliance connection, and that “by ICANN” in fact meant, “by ICANN”.
As it stands, the process:
- Requires possibly significant fees, the magnitude of which are currently unknown;
- Requires that the complainant can show measurable harm due to the violation;
- May be filed by ICANN, but there is no obligation to do so.
Since no exception is noted, presumably ICANN could only file an objection if ICANN itself could demonstrate that it was measurably harmed. This sounds like a return to the days when the only sanctions ICANN applied under the RAA were those where ICANN was not being paid.
Using this same standard of language, one could say that “trade-marks are enforced by ICANN” because it has provided the UDRP.
There was much hope in the community that the PIC would go at least part way to recovering from the mistake of not requiring all new gTLD applicants to stand by their application promises once the new TLD is delegated. This hope has not been satisfied.