On April 21st the Internet Commerce Association submitted a formal request to Mr. Frank Fowlie, ICANN Ombudsman, requesting an immediate investigation of the non-compliance of the Implementation Recommendation Team (IRT) with applicable provisions of ICANN’s Bylaws. The IRT was created by a March Resolution adopted by the ICANN Board during its Mexico City meeting, and was charged with proposing “solutions” to the concerns of trademark holders. Unfortunately, the IRT has chosen to operate in a non-transparent manner that unfairly excludes meaningful participation by professional domain name registrants who are most likely to be affected by its recommendations. Further, it is becoming clear that the IRT is in significant part an expedited, backdoor process for proposing and implementing major changes in second level dispute procedures that will undermine and displace the Uniform Domain-Name Dispute-Resolution (UDRP) and thereby substantially diminish the procedural and substantive rights it presently affords to good faith domain registrants. There is also a high likelihood that any such changes in dispute procedures implemented in the context of new gTLDs will quite probably migrate in short order to incumbent gTLDs, including .com.

The main points made in ICA’s letter are:

• The IRT is a “constituent body” of ICANN and its non-compliance with ICANN Bylaws falls within the jurisdiction of the Ombudsman.
• Any consideration of second level disputes that results in alteration of the UDRP must take place within a stand-alone process that is fair, open and transparent, and separate from the development of final application rules for new gTLDs.
• The IRT’s non-compliance with Bylaws requirements for open and transparent proceedings that ensure fairness is documented in its own minutes.
• The IRT’s non-compliance creates substantial litigation risk for ICANN itself.
• The IRT should be compelled to come into immediate compliance with all applicable ICANN Bylaws or, failing that, ICANN should withdraw all staff and financial support and regard any recommendations it may forward as lacking any official status.

The ICA’s latter also states, “The IRT process is not, as required by the Bylaws, open and transparent, it does not ensure fairness, and it does not ensure that one of those entities that will be most affected by the policy development process—the domain investment and development community—can meaningfully assist in this policy development process.”

The full text of the letter may be found at http://www.internetcommerce.org/node/179.