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Claims UDRP has cost over $360 million so far

Kevin Murphy, February 13, 2019, Domain Policy

Trademark owners have splashed out over $360 million on UDRP cases over the 20 years the policy has been active, according to an intellectual property trade group.

Marques, a European body representing trademark owners, reckons $360 million is a “conservative” estimate.

It reached the figure by multiplying the number of UDRP complaints filed to the end of 2018 — 72,038 — by the $5,000 estimated total cost of each complaint.

The World Intellectual Property Organization, which handles well over half of all UDRP cases, charges at least $1,500 per case, but trademark owners have other fees, such as paying lawyers to draft the complaints.

WIPO, which basically designed and wrote the UDRP back in 1998, has been paid at least $63.8 million in filing fees to date, Marques calculates.

Across all UDRP providers, well over 100,000 individual domain names have been subject to UDRP. It’s likely much more, but the National Arbitration Forum does not publish data on unique domains.

The Marques claims were made in a letter (pdf) from council member (and Com Laude managing director) Nick Wood to ICANN last week, part of IP lobbying efforts in the face of UDRP reform efforts. He wrote:

This lowest-case estimate of $360m is a very significant financial burden. Registrants, on the other hand, pay only for their own defence, if any. They do not pay damages, or even contribute to the provider fees, if they lose – which across the five active panel providers appears to be majority of the time.

One proposal that has been put forward by IP owners is for registrants to pay a $500 fee when they are hit by a UDRP complaint, which would be refundable if they prevail.

I can see this idea going down like a cup of iced sick in the domainer community.

Rather than lobbying for any specific proposal, however, Marques is asking ICANN to create an “independent expert group” outside of the usual Policy Development Process, to highlight “priority issues and possible solutions” for the PDP to consider.

Marques thinks the group should comprise a small number of trademark interests, registries and registrars, and registrant rights groups. It wants WIPO to chair it.

It also wants ICANN to coordinate UDRP providers in the creation of a unified set of data on UDRP cases processed to date, to help with future reform discussions.

ICANN community volunteers have been working on the “PDP Review of All Rights Protection Mechanisms in All gTLDs” — the RPM WG — since March 2016.

The RPM WG expects to put out its “Phase One” initial report, comprising recommendations for reform of the Trademark Clearinghouse, Trademark Claims and Sunrise policies, in early June this year.

Only then will it turns its attention to UDRP, in “Phase Two”, with talks due to begin at the ICANN 65 meeting in Marrakech later that month.

The working group has been beset by all kinds of personal drama among volunteers recently, which continues to add friction to discussions.

Crocker: no date on next new gTLD round

Kevin Murphy, July 27, 2017, Domain Policy

ICANN will NOT set a date for the next round of new gTLD applications, despite recent pleas from registry operators.

That’s according to a letter (pdf) from ICANN chair Steve Crocker to the Registries Stakeholder Group published today.

The RySG had asked (pdf) last month for ICANN’s leadership to set a fourth-quarter 2018 deadline for the next application window.

It said that that drawing a line in the sand would allow potential applicants to plan and would prevent current policy-development processes from being abused to delay the next round.

But Crocker says in his letter that it is up to the ICANN community, not its board of directors, to determine if and when a new round should commence. He wrote:

Once the community completes its work, the Board will consider the community’s recommendations to introduce additional new gTLDs. Without the final findings and recommendations from the review and PDP, the Board won’t be able to determine what needs to be done prior to the opening of another application process…

The Registry Stakeholder Group’s letter suggests that by setting a date for the opening of another application process, the Board will provide the community with a target date to work toward. Although the Board setting a date would achieve this, doing so might contravene the multi-stakeholder process that allows for the community to have the necessary discussions to arrive at consensus, and to determine the timing of their own work

It seems this is an instance in which the board does not like the idea of setting policy in a top-down manner.

Crocker said the two remaining gating factors for a next round are the consumer choice and competition review of the first round, which is ongoing, and the GNSO’s New gTLD Subsequent Procedures Policy Development Process (PDP).

The PDP has now been going on for 18 months and yet discussions remain at a very early stage, with hardly any preliminary recommendations being agreed upon.

There’s not even agreement on foundational issues such as whether to carry on dividing the program into discreet application rounds or to start a first-come, first-served process.

The RySG had suggested in its letter that the next window could open after certain threshold issues had been resolved but before all policy work was complete, and that at the very least ICANN staff should get to work on a new version of the Applicant Guidebook while the PDP is still ongoing.

But Crocker again responded that the staff cannot get to work on implementation until the board has considered the community’s final recommendations.

ICANN’s most recent estimates for the opening of the next round would see applications accepted in 2020, eight years after the last round.

ICANN is about as fast as a pregnant elephant

Kevin Murphy, May 24, 2012, Domain Policy

Making a binding policy at ICANN takes about the same amount of time as gestating a human fetus, but only when the organization and community are working at their absolute fastest.

It’s much more often comparable to an elephant pregnancy.

That’s according to a timetable researched by ICANN senior policy director Marika Konings and circulated to the GNSO Council this week.

Konings found that the latest iteration of the GNSO’s Policy Development Process has to last for a bare minimum of 263 days, three days shorter than the average human pregnancy.

However, that deadline would only be met if ICANN staff were fully resourced, all community participants were firing on all cylinders, and there was full agreement about the policy from the outset.

That’s obviously a completely fanciful, largely theoretical scenario.

The more realistic estimated average time for a PDP to run to completion – from the GNSO Council kick-starting the process with a request for an Issue Report to the ICANN board voting to approve or reject the policy – is 620 days, Konings found.

That’s slightly slower than the gestation period of an Asian elephant.

In other words, if some hypothetical policy work were to start in the GNSO today, we could not reasonably expect to see an outcome one way or the other until February 3, 2014.

Konings’ findings were accompanied by an assessment of eight relatively recent PDPs, which took between 415 days and 1,073 days to reach a board vote. The median time was 639 days.

Some GNSO Councilors think ICANN needs a fast-track PDP for no-brainer policies. I tend to agree.