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 Public Consultation of IEDR Dispute Resolution Policy Imminent
posted by michael on Wednesday May 14 2003, @04:26AM
J. Rossa Mcmahon writes "The IE Domain Registry, administrator of the Irish country-code Top Level Domain (ccTLD) this afternoon published the first update of their inside.ie newsletter since 27th February, announcing that public consultation would soon begin in relation to their much-anticipated IE Dispute Resolution Policy (IEDRP).
The IEDR appointed the World Intellectual Property Organization (WIPO) as its Dispute Resolution Service Provider in January 2001, and claimed the publication of the IEDRP was ‘imminent’. Since then, regular updates have informed the public that WIPO consultation was ongoing until the inside.ie newsletter fell silent in February."
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"However, the IEDRP has been available on the IEDR website for some time - but only via a link from the WIPO page on the Irish ccTLD. It states that the IEDRP has been in effect since 7th April, but today's inside.ie News page suggests otherwise:
Following extensive consultation with WIPO (World Intellectual Property Organisation), the IEDR will shortly begin a customer discussion process in connection with the IE Dispute Resolution Policy (IEDRP). The purpose of this policy is to resolve disputes over domain names in a fair and transparent manner. Once the policy is launched, all future dispute proceedings will be administered by a panel of experts appointed by WIPO.
Like the text of the IEDRP, the WIPO site suggests that the Policy is currently in operation and lists the costs involved (€1,500 for a basic single-member panel dispute covering up to 5 domains).
The IEDRP itself is a rehash of the ICANN's UDRP, replicating its deficiencies while adding some of its own. An example of the former is the retention of the pointless and futile cancellation remedy; an example of the latter is the introduction of protection for 'geographic indications', “indications which identify a good as originating in a territory or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.” No examples are provided by the IEDR, so it is unclear to what type of domains this might apply.
Unlike the UDRP, protection is expressly offered to personal names registered as domains, but only those “in which the Complainant has acquired a reputation in the island of Ireland.” The determination of whether an individual has such a reputation in Ireland may be difficult of itself, but as only Irish panellists will be used the sort of wildcard decisions seen under the UDRP are improbable.
However, the composition of IEDRP panels is likely to be a source of difficulty: like the UDRP, either party to a dispute can request a three-member panel (as opposed to the default of one member), but the WIPO currently lists only two arbitrators eligible to decide on IEDRP cases – making a three-member panel impossible. It must be presumed that the WIPO intends adding to its roster of Irish panellists in the near future, otherwise an interesting flaw will exist in the IEDRP from its implementation.
Public consultation of the IEDRP will be meaningless without also presenting proposed changes to the Naming and Registration Policy . Without changes, documentary evidence must still be provided by most applicants and a ‘real and substantive connection’ with Ireland must be proved for non-residents. With restrictions on registration the IEDRP is unnecessary, but the attractiveness of the domain is also diminished as it becomes too difficult to register.
The IEDR did not respond to an email inquiry as to the status of the IEDRP (submitted before the publication of inside.ie this afternoon)."
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Public Consultation of IEDR Dispute Resolution Policy Imminent
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ICANN has been prudent and refrained from interfering with the type of dispute resolution procedures that national registries should implement, although they have, through WIPO, produced a best practice guide based on the UDRP. Since many small or unsophisticated registries want to avoid being burdened with having to create their own policies they look to ICANN’s UDRP for advice. Whilst some, like Nominet, the UK registry for domain names ending in .uk, have chosen not to use the UDRP as a template, the fact remains that a significant number do, and thus ICANN indirectly controls the way in which disputes are handled in those countries. As such, many of the decisions taken by panellists operating under ccTLD dispute resolution systems will be in line with UDRP panellists. Given that all ccTLD registries maintain the appropriate name servers and zone files for their respective ccTLDs, ccTLD managers determine which domain names will be visible in cyberspace in accordance with the decisions of their panellists. Thus, the implementation of these decisions very often reflects ICANN ideology.
The same seems to happen in the case of Ireland and this is exactly what ICANN aimed for; to create some sort of a system that national registries will implement and concurrently ICANN will be able to control national disputes and the way they are decided. It is rather unfortunate that national registries are not more imaginative and determined in order to devise their own dispute resolution system. The UDRP is not a model upon which national registries should depend and create their own system, as the Policy has a lot of flaws and contradicts basic rules or arbitration.
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