<nettime> [IFWP] RE: [dnsproc-en] 4th WIPO Panel of Experts member signs ICANN petition

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu> (by way of Name.Space)]

What exactly is the "WIPO recommendations" that the Board is being asked
to adopt:  Is it the whole report?  Just the annexes?  If the latter, it
is hideously unfair, for the reasons set out in my commentary at
http://personal.law.miami.edu/~amf/commentary.htm . If the former, the
tensions between the report and the annexes will breed confusion.

In either case, the procedural timetable is very flawed:  If I represented
a trademark owner, I would be rather concerned about a plan that gave me
10 days to assemble my complete reply and defense to complaints from the
date an email was sent (not received!), and no effective appeals
whatsoever.  Does Ms. Cade accept that in the hands of an unscrupulous
party, the timetable creates a potential for ambush?

I should also note that there is an awful lot of new stuff in the final
report.  The definition of cybersquatting is all new -- and was never
discussed in any public forum, either on line or in the various hearings.
It would be *very* interesting to know if Ms. Cade had seen it before it
was published.  We Experts were instructed to keep it under wraps when we
were first shown a draft thus negating the possibility of open public
discussion.

The Annexes were never even shown to the Experts.  (Had Ms. Cade seen them
prior to publication?)  This despite my specific written request to the
WIPO staff to see them before publication.

If this were a proceeding under the US Administrative Procedures Act
(which, of course, it was not), the final report would constitute the sort
of "swerve" that would require a new round of notice and comment.

In my opinion, there *is* sufficient time for that discussion between now
and August if it starts soon, but the institutional mechanisms for it do
not appear to be in place, and it is also unclear that this is an
appropriate decision for the Interim Board. A particularly good statement
of the issues appears in the comments of Prof. Jonathan Weinberg at
http://www.icann.org/comments-mail/comment-ip/msg00061.html

--
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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