Implementation Recommendation Team

The Implementation Recommendation Team is a working group composed of international experts with relevant knowledge and experience in the field of consumer protection and trademark issues and laws. It was created by the Intellectual Property Constituency of the Generic Names Supporting Organization (GNSO) in compliance with an ICANN Board Resolution on March 6, 2009. Its main objective was to develop recommendations that will help resolve the issues concerning trademark protection in connection with the introduction of new generic top level domain names (gTLDs).

Background

The establishment of the IRT was a result of a public discussion regarding the implementation models of new gTLDs during the 34th ICANN Meeting in Mexico City on March 1-6, 2009. During the discussions, the IPC and different internet stakeholders voiced their concerns over trademark protection issues and the costs associated with the implementation of new gTLDs, which may discourage participation, such as the application fee of $135,000 stated in the New gTLD Applicant Guidebook. Subsequently, the ICANN Board authorized the creation of the IRT to tackle & identify the problems related to trademark protection and recommend solutions.

The ICANN Board instructed the IRT to release its draft report to the Internet community on April 24, 2009 and the final report on May 24, 2009 for public comments.

On March 24, 2009, IRT conducted its first administrative meeting (teleconference) and formulated its working rules and agenda for future meetings. The team's first face to face meeting was held in Washington D.C. on April 1-2, 2009.

IRT Recommendations

The IRT identified high priority issues and recommended the following solutions to help solve the top concerns of Internet stake holders:

1. Creation of IP Clearinghouse, Globally Protected Marks Lists, Associated Rights Protection & Standardized Pre-launch Mechanisms
2. Uniform Rapid Suspension System (URSS)
3. Post delegation dispute resolution mechanisms at the top level
4. Whois requirements for new TLDs
5. Use of algorithm in string confusion review during initial evaluation

Members of IRT Team

The IRT was developed by 18 members of the IPC. Caroline G. Chicoine served as Chairman of the team. The members of the IRT include:

• Caroline Chicoine, Practicing Attorney- Fredrikson & Byron
• Mette Andersen, Corporate Counsel- LEGO Juris A/S
• Jonathan Cohen,  Senior Partner- Shapiro Cohen]]  
• J. Scott Evans,  Senior Director ‐ Legal, Yahoo! Inc.
• Zahid Jamil, Barrister‐at‐law-Jamil & Jamil
• Stacey King, Intellectual Property Lawyer-Richemont
• Hector Ariel Manoff, Head-Intellectual Property Department- Vitale, Manoff & Feilbogen
• Jeff Neuman,  Vice President, Law & Policy-Neustar, Inc.
• Jon Nevett, Vice President, Chief Policy Counsel- Network Solutions Inc.  
• Russell Pangborn, Managing Attorney- Microsoft Corporation
• Mark Partridge, Partner- Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP
• Kristina Rosette, Special Counsel- Covington & Burling LLP
• Ellen B. Shankman, Attorney at Law- Ellen B. Shankman & Associate
• David Taylor, Partner, Intellectual Property, Media & Technology- Lovells LLP
• Kiyoshi I. Tsuru,  Tsuru, Morales & Tsuru ABOGADOS, S.C.
• Fabricio Vayra, Counsel, Intellectual Property- Time Warner Inc.
• Mary W.S. Wong, Professor of Law- Franklin Pierce Law Cente
• Nick Wood,   Managing Director- Com Laud

Ex-Officio Members

• Rita Rodin Johnston, ICANN Board
• Bruce Tonkin, ICANN Board  
• Steve Metalitz, IPC President
• Claudio diGangi, IPC Vice President
• Mark Bohannon, IPC Treasurer
• Sam Mosenkis, IPC Secretary

ICA Complaints on IRT

On April 24, 2009, Philip Corwin, Counsel for Internet Commerce Association submitted a complaint against the operations of the IRT and requested ICANN Ombudsman Mr. Frank Fowlie to conduct an investigation. According to Corwin, the IRT had been conducting its activities unfairly and without transparency. He cited that the IRT members agreed on their March 25, 2009 meeting to provide general updates only to the internet community and that ideas may only be shared as long as it has no attribution. The mailing list and call records can only be accessed by IRT members. In addition, discussions of the IRT members during meetings were to be confidential with no distribution of MP3. Corwin added that during the subsequent meetings of the IRT, information provided to the internet community was superficial, and the chairman of the team even reminded its members about "IRT’s Code of Conduct and Confidentiality Obligations". Corwin pointed out that IRT's actions are in clear violation of Article III Section 1 of the ICANN Bylaws, which reads: "ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness".

Furthermore, Corwin requested the ICANN Ombudsman to compel IRT to release its archived mailing list, audio recordings and transcripts of all its teleconferences and face-to-face meetings and to release an interest disclosure statements for all of its members. If IRT fails to follow the ICANN Bylaws, Corwin recommended that the internet governing body must instantly withdraw all financial and staff support to IRT and inform the team that its status has been cancelled due to its failure to implement fairness and transparency in its operations, which is one of the core values of ICANN.

ICANN Ombudsman's Action to the IRT Complaint

After receiving the complaint filed by ICA Legal Counsel Philip Corwin regarding the operations of the IRT, ICANN Ombudsman Frank Fowlie reviewed the case and conducted an investigation. On June 3, 2009, Fowlie sent a detailed preliminary report answering the concerns of Corwin.

First, regarding Corwin's complain on May 8 that he was not given a fair opportunity to either participate in the IRT as a member or to encourage others to join the application process, Fowlie verified the traffic on the GNSO listserv; the content of the ICANN website, news releases and he also personally asked the IP Constituency President on how they conduct their information dissemination. He found that the internet community was informed through the following:

1. an announcement of the call for candidates on the GNSO list;
2. it was included in the ICANN newsletter;
3. and it was announced on the ICANN website

He also found that Corwin was invited by the IRT and he even conducted a presentation during the IRT meeting in San Francisco. Fowlie pointed out that based on the evidences, ICANN and or the selecting members of the IRT did not act in any way to prevent Corwin or any other person from learning about the call for IRT candidates. He believed that there is no evidence that the opportunity to serve as a member of the IRT was either unfairly administered, or that the general make-up of the members was unfair to those who were not selected.

Second, On the issue of openness and transparency, Fowlie pointed out that it is generally accepted by the public that a full verbatim report may not be provided by participants in ICANN discussions & meetings . Minutes are provided instead of full verbatim reports particularly, the ICANN Board of Director's Meetings. In addition, Fowlie emphasized that some of the meetings are video recorded especially when there a need for consensus. With regards to the IRT on March 25, Fowlie quoted Item 4 on its preliminary report, which reads: "Reporting & Transparency – the call today was recorded since IRT operational protocols being decided on the call; minutes of this call and all meetings shall be posted on the wiki; many team members raised concerns about being able to participate fully and effectively if team work was fully public; agreed to closed mailing list, recordal of calls for IRT members only, no distribution of MP3, discussions to be confidential except general updates and ideas may be shared provided no attribution; issue of conflicts raised and agreed participants shall submit statements of interest."

Based on his finding Fowlie found that the IRT meeting were recorded appropriately and the minutes were posted on the website to inform the internet community. He also added that the statements of interests were included on the IRT Final Report. Fowlie reported, he cannot make the determination that ICANN has acted unfairly by producing minutes as opposed to verbatim recordings of the IRT meetings.

Third, Corwin requested the Ombudsman to compel IRT to release the conflict of interest disclosure statements of applicants to the public. Fowlie explained that ICANN adhere to the principles of freedom of information and privacy. One the principles is not to release third party information held by an agency, government, organization, etc. In the case of IRT members, their privacy is respected by ICANN. In addition, Fowlie pointed out that the members of the ICANN Board are required to disclose their conflict of interests but their statements are treated with confidentially. He said that it only proper to extend the same level of confidentiality to the IRT members. Furthermore, he emphasized that the IRT Final Report included the identity of the members of the IRT, their position, place of company or affiliation as well as their statements of interested, which can be found on the website. Fowlie concluded that, it is not an unfairness for ICANN to refuse to release third party information about members of the IRT.

ICA Response to the ICANN Ombudsman's Findings

On June 12, 2009, Corwin responded to the Ombudsman's report describing it as tardy, non-responsive and non-persuasive. Corwin expressed his dissatisfaction to the report and pointed out two overarching problems. First, the report is late and it took the Ombudsman Fowlie 6.5 weeks to address the issue. Second, Fowlie failed to respond ICA's main complaint that the IRT as a constituent body of ICANN should operate in accordance with ICANN Bylaws. Furthermore, Corwin said that he bring ICA's views regarding the IRT recommendations to the ICANN Meeting in Sydney. He emphasized, If ICANN does try to do an end run around its own prescribed policy making process we shall likely seek redress through means other than an appeal to its Ombudsman office.

On June 25, 2009, during the public forum at ICANN Sydney, Corwin raised the concerns of ICA regarding the IRT process. He emphasized that the team was not operating within the requirements set forth by the ICANN Bylaws as a constituent body to maximize transparency and representation. During the forum, He said, "allowing a single constituency to control the agenda and membership of a short-term adhoc group and have its recommendations implemented without further community wide policy review would be a terrible precedent, a very dangerous precedent." Participants in the forum were given 2 minutes to ask questions or state their concerns to the ICANN Board. Corwin used up his entire 2 minutes stating his point of views and complaints, the ICANN Board did not have enough time to respond to his concerns since majority of the members of the ICANN community were also waiting for their turns to be heard and state their concerns.

Generic Names Supporting Organization. Develops and recommends to the Board substantive policies relating to generic top-level domains and other responsibilities set forth in the Bylaws (ICANN Bylaws).

Intellectual Property Constituency