I fully support, and incorporate by reference, the comments
of Professor Michael Froomkin on the Uniform Dispute Resolution Policy.
For the sake of emphasis, I will repeat here in summary form my most important
concerns about the proposed policy.
1. Process. This policy is a redraft, by ICANN staff, of a document that first came to the attention of the Internet community at the Santiago ICANN meeting. This brief two-week comment period has been the *only* time that the policy, or any direct predecessor, has been subject to scrutiny by a range of interested and internationally representative actors. There is simply no reason to rush the policy to quick enactment without allowing the international community a reasonable time to examine it and its potential consequences.
2. Tarnishment. Under section 4(c)(iii) of the proposed policy, a person making a legitimate noncommercial or fair use of a domain name will nonetheless be considered to have no legitimate rights in the name, if the Panel finds that he intends or intended to "tarnish" the mark. Thus, the owner of microsoft-sucks.com (for example) would be considered to have no legitimate rights in that domain name, and would be vulnerable to being stripped of the domain name in the ADR process. This is surely a wrong result. It would grant trademark holders grounds for relief that go far beyond anything available to them under conventional trademark law, and would allow them to oust domain name holders in cases that don't remotely correspond to the conventional understanding of cybersquatting. It would allow the ADR process to be used as an instrument of suppressing free speech.
3. Parity of Appeal. The rule that a domain name holder, in order to block a the transfer of his domain name, must file a lawsuit in the jurisdiction of the *registrar* within *ten business days* makes the domain name holder's protection more apparent than real. It is essential to parity of appeal that domain name holders have an effective route to judicial resolution of their claims. At least for the time being, though, NSI retains an overwhelming share of gTLD registrations. As a result, the rule yields protection for the overwhelming mass of domain name holders, located across the globe, only if they are in a position to file, and do file, an immediate lawsuit in the Eastern District of Virginia. That is not meaningful protection. A far better rule would allow domain name holders the option of blocking transfer by filing a lawsuit in their home jurisdictions.
4. Reverse Domain Name Hijacking. Nothing in the policy
meaningfully discourages trademark owners from engaging in reverse domain
name hijacking, or otherwise harassing domain name holders by bringing
meritless claims.