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The CDRP as a framework is largely based off of the UDRP, and together their primary goal is to quickly resolve clear cut cases of bad faith domain name registrations between third parties. Its intent and dominant use has been for well-known trademarks to protect their intellectual property and to stave off blatant bad faith domain registrations.

The framework and process has largely been modeled around this goal.

However, we have seen that the CDRP has heard complaints which are largely outside of this intended scope, to include deliberations in matters that involve business partnership disputes, contractual disputes, and other more complex matters. In some cases, the panelists have appropriately determined that the scope of the dispute before them is in excess of the CDRP mandate. While in other decisions, zealous panels have overstepped their purpose and interfered in more complex disputes.

This inconsistency in adherence to the scope of the CDRP raises the issue of whether the CIRA is prepared to handle the inevitable liability it will attract if it continues to allow the CDRP to be used as a forum it was never intended to be used for. There are clear cases where parties have used the CDRP in an ill-fated manner to obtain an advantage amidst larger disputes which are at risk of or in preparation of litigation.

At the path the CIRA is going, the CDRP’s scope is going to continue to be broadened and used by zealous parties to gain ancillary benefit or leverage during disputes. This will expose the CIRA to unanticipated liability as it continues to interfere in matters which involve issues of property rights. The CIRA cannot protect itself through provisions of the Registrant Agreement in this regard, as the Supreme Court has recognized that domain names are a property right and by extension the CIRA does owe some sort of fiduciary duty to registrants of .CA domain names.

It is my suggestion that the CIRA needs to conduct a thorough review of the CDRP, and introduce more screening measures (or other reform) to ensure that complaints are brought within the scope of the CDRP, and that the service providers adhere to the intended scope of the CDRP. As it stands, there is a clear financial incentive for the service providers to hear all disputes, regardless of their subject matter, as long as the dispute vaguely involves a .CA domain name and there is satisfaction of Canadian presence requirements.

This is an issue that is going to affect the CIRA at one point or another, as it is inevitable for the CIRA to be challenged in court as to the interference and legitimacy of the CDRP in matters of property rights and whether it owes any fiduciary or other legal obligation in the best interests of the registrants.

I welcome suggestions and submissions by the candidates on this subject.

As a data-driven board candidate, I would ask management for an analysis to be conducted on the number and type of complaints submitted under CIRA's Dispute Resolution Policy (CDRP) over the past 3 years and how many submissions were felt by the panelists and/or Registrant to be within scope, or moderately or egregiously exceed the scope and spirit of CDRP. If the analysis supports the frequent scope creep of submissions, I would support management amending the CDRP and educating users of CDRP accordingly. I would also ask management to obtain a legal opinion on CIRA's possible legal exposure / risks with respect to the current CDRP in light of the analysis of submissions. -Liza Aboud

 

As a result of the recent Liberal leadership race in Newfoundland and Labrador, we now have a new premier, Premier Andrew Furey. Early on in the process, his team was using #furey2020 in the media, but if you visit furey2020.ca you will not find his platform.  All of that to say, this was done in bad faith, and had there been a dispute, thankfully CDRP guidelines are available to help resolve it. This type of situation is becoming all too familiar, but the question suggests that CDRP is increasingly dealing with more out-of-scope issues.  I would propose a detailed report of CDRP usage with further review, if deemed necessary, citing recommendations to tighten up the process. Risk management is of paramount importance to CIRA, and its legal advisors should be involved to ensure that its interests are protected.

 

Hi ACIRAMember (whomever you are!), thanks for the question.  Ryan Black here: nomination committee candidate and current Board member and Chair, Governance, at CIRA.   I need to be very careful here because in addition to being a board member, my full time job is as an Internet an technology lawyer, and so I'll get WAY to in the weeds if I get into it too much.

However, I feel that greivances with the CDRP process are exactly why Canada's Federal courts have jurisdiction to order up transfer of domain names in the case of trademark infringements, if one wants to go that route.  CIRA took steps around 2012 to make the more complainant-friendly, to ensure that aggrieved parties could get their complaint commenced - certainly, this may result more complaints or complaint scope creep.  However, CIRA relies on well-known, independent service providers to administer disputes, and while one party or another may feel aggrieved, I think that there has been much success in the approach - contrary to the premise of the question, I don't think the primary motive of these organizations is to hear any and all disputes, it's generally to render the right decisions (and the requirement for three panelists helps).  CIRA's policy also clearly sets out the limits of CIRA's liability, so as a steward of the organization I feel that the policy is well-drafted.   Adding appeal procedures would be a double-edged sword, and could add complexity and costs to complainants or respondents.

The question states "There are clear cases where parties have used the CDRP in an ill-fated manner to obtain an advantage amidst larger disputes which are at risk of or in preparation of litigation."   It's the ill-fated part I care about, and the ill-fated part wins the day: you can't stop someone from bringing an extra-jurisdictional claim or improper complaint, but you can certainly make sure they don't win.  Courts have always had stretching or even vexatious litigants, we could never come up with a policy that prevents that at the CDRP.  When it costs so little (especially in context of our competitors) to get a .CA, I think a policy that errs on the side of hearing complaints makes a lot of sense.

 

This is a very interesting discussion!   To me, this is a risk management item.   I agree that this is an issue that is going to affect the CIRA at one point or another, but I don't believe this requires a reallocation of resources at the moment.   I would like to see the overall history reported to the Board and that this serve as a dashboard indicator in order to ensure it is monitored.    My understanding is that operationally, CIRA is adequately staffed to process the current volume of complaints, and we can defer the need for the review until such time (as you indicate) that further trending analysis is available in order to provide a more structured and detailed series of recommendations. 

Jennifer Sondergaard

I am not a lawyer (and not a candidate either this year), but I'm not sure how CIRA has liability for CDRP decisions made by the two appointed providers? I don't think CIRA is even involved in pre-evaluating complaints. Also, I believe registration agreements and CDRP limit the scope and liability already. Before examining this further, I would also want to look at how big of a problem this is - the CDRP decisions are all public; maybe the CIRA member asking the question can provide some background about their concerns.

CIRA should always be open to the possibility of improving policies and management of processes like the CDRP.

In this case, I would not recommend using any board or operational resources to investigate or make changes to the existing CDRP without more evidence that supports  your statement “CDRP has heard complaints which are largely outside of this intended scope”.  

If you can identify the list of complaints that might be problematic, I’m happy to review them and consider whether this question merits further action by the board and/or management. 

References:

CIRA Domain Name Dispute Resolution decisions
https://www.cira.ca/cdrp-decisions

 

Oh wow, I didn't think this would get so much attention from the candidates. I'm thankful that all of you have taken the time to address this niche issue with such detail.

Due to the time limits of this open forum, I will take some recent cases and give them attention before the candidates rather than addressing the responses directly from each response.

The decision of Trucksuite LLC v Paul Donofrio [2243-CIRA][2020] is a prime example of a case that should have been screened out at a preliminary stage and not have gone through to deliberation. The Panel accurately captures that the complaint is a result of a business dispute between both parties. Although the Panel then determines that the complaint should ultimately fail, the registrant still had to devote resources to respond to the complaint. By the quick evaluation of the facts of the situation, it would be clear that this is well outside of the scope of a CDRP dispute, and the complaint should have been screened out and told to seek proper jurisdiction for its dispute.

Another clear example is the decision in DCA-2211-CIRA, where the complainant started a CDRP dispute amidst a business partnership dispute. In this case, the Panel made great error by not screening out this complaint. What is more concerning, is that the Panel made a decision and by electing to do so, it inevitably affects the rights of one of the parties amidst their continuing dispute. The Panel highlighted that the dispute was primarily about control of a business asset (the domain names). Further, the Panel highlighted the Registrant’s position that there was a genuine dispute regarding the ownership of the companies (one of the Complainants) and that the CDRP was not the appropriate venue to resolve it. Surprisingly, the Panel here found that despite the clear indication of a larger dispute between the parties, that they should still decide on the issue of an alleged bad faith domain registration. The dispute over the control of the domain names was clearly part of the larger dispute and an inappropriate expansion of the scope of the CDRP to decide on a discrete issue amidst a larger corporate governance dispute.

One more case to highlight, is one of the earlier cases involving seedcheck.ca – another dispute that arose from a business partnership dispute. The Panel here found that the Complainant could not satisfy it had rights in the trademark name, and as such, the Panel found that the Complaint should fail. However, despite the complaint failing at the first legal test, it was clearly initiated beyond the scope of the CDRP. When there is any indication of an ongoing or recent dispute between two parties that stems from a larger business relationship, such matters can never be clear cut and must quickly be rejected without deliberation on the merits.

These three cases highlight inappropriate uses of the CDRP by complainants by making attempts to gain an advantage amidst larger disputes. What is also made clear are inconsistencies in how the scope of the CDRP is interpreted based on the qualifications of the members of the Panels. In the first decision, the Chair was a retired Ontario lawyer with significant legal experience. In the second decision, the Chair was an arbitrator with no legal practice or training. In the third decision, the Chair was another experienced Ontario lawyer.

The CDRP should have mechanisms to screen these types of disputes. All of these complaints should have been screened out based on the fact that the parties had a prior business relationship with each other. Any CDRP complaint that stems from a recent (or ongoing) dispute amongst parties that have a relationship immediately goes beyond the scope of ‘clear cut’ or ‘summary’ complaints of bad faith domain relationships.

 

 

Thank you so much for this, ACiraMember!  That's a lot of reading (but for this lawyer at least, very enjoyable reading).  The second case is of great interest to me, and I will be digesting it.  Thank you for raising this incredibly interesting issue to give Members' and Nomination Committee candidates a chance to discuss this!

I look forward to your comments!

ACIRAMember, thank you for your response and the details.

If there is going to be a CDRP reform, I would also be happy to see reverse highjacking penalties to the complainant introduced as part of the process. It doesn't appear to be that relevant for CDRPs today, more so for the UDRP.

ACIRAMember,

Thank you very much for taking the time to support your original question with specific cases and commentary.

I don’t have the legal background to comment on the specifics of each case, but as a member of the ICANN At-Large community, I appreciate the importance of making sure domain name resolution disputes are managed properly, either in the Canadian context of CIRA or at the larger global level with ICANN.

From a CIRA stewardship perspective, I think you raise a valid concern that needs to be monitored. You’ve definitely piqued my interest wondering about whether the total number of cases you categorize as “case creep” are severely impacting limited process resources and/or decision quality. I think Ryan points out that any liabilities to CIRA may be limited.

I’d support the idea of adding a simple “case validity” check at the beginning of the process, as long as it doesn’t burden the process workload too much.

 

On a slightly different note, I noticed two phrases that I’d like to comment on …

“… the time to address this niche issue with such detail.”

and

“Due to the time limits of this open forum …”

First, I don’t believe any topic in the CIRA Campaign Forum is niche. I appreciate you raising this issue, since it gives everyone in the forum a chance to think about a part of CIRA that’s not usually at the top of mind. Thank you.

Second, I’m keenly sensitive to the limits of communication within CIRA Member community during and after the annual election period. The Campaign Form offers the benefits of interacting with a mix of highly skilled CIRA members, but unfortunately it’s here only for a limited time during the annual election cycle.

If you’re interested in continuing this type of conversation after the election is over, you may wish to consider joining the CIRA Members Facebook group. This is a small group of members who are completely unaffiliated with any official CIRA business. However, we bring up topics of interest like this and learn from each other throughout the year. Any member of CIRA is welcome to join.
https://www.facebook.com/groups/288806224952625

This question has two themes:

1. The rights of parties to a dispute resolution procedure, and

2. The potential impact on CIRA from a risk perspective.

There is no doubt that there is a requirement to have a dispute resolution procedure to ensure that rogue actors are not merely registering domains to later profit from sale to another company.  Also, there may be disputes associated with the unwinding of partnership agreements and survivability and ownership of the relevant .ca domain. So I am in favour of a CDRP that allows any dispute to be settled.

As for the risk perspective, I would need to understand the legal ramifications of any claim against CIRA (if any) and the size of the risk (few, hundreds, thousands etc.) in terms of the number of cases.  Risk Management is an ongoing issue for any board of directors to consider, and I am sure that this, as well as other, risk items are considered by the CIRA board as well.  I would listen to input from management as well as legal advice in address the specific question raised for the CDRP.

@Joe, do you think buying domains with the purpose of resale is not a legitimate business interest, even when it doesn't infringe on the rights of third parties.

If so, how does it differ from buying a property in order to sell it to developers at a later time? How do you determine that a name was purchased for resale? Many companies frequently hold unused domain names and also list them for sale, including Yahoo!, Microsoft etc. Would you allow this for them while forbidding this practice for others?

The current CDRP has a definition of what it is intended for. Why would you want to be used beyond this scope, when there are other means to address business disputes (courts)?

 

https://www.cira.ca/policy/domain-name/cira-domain-name-dispute-resolution-policy

"1.1 Purpose. The purpose of this CIRA Domain Name Dispute Resolution Policy (the “Policy”) is to provide a forum in which cases of bad faith registration of domain names registered in the dot-ca country code top level domain name registry operated by CIRA (the “Registry”) can be dealt with relatively inexpensively and quickly."