[ga] Fw: [gnso-acc-sgb] Impact on UDRP

[Hugh Dierker <hdierker2204@xxxxxxxxx>]

Debbie,

Here is the middle of a debate that overlapped here. This shows the brass tacks 
of getting down to disclosures and why or why not.  The subgroup b in the 
address refers to a GNSO group, that dovetailed with more open discussions had 
here.


----- Forwarded Message ----
From: Doug Isenberg <disenberg@xxxxxxxxxxxxxxx>
To: gnso-acc-sgb@xxxxxxxxx
Sent: Thu, May 17, 2007 9:06:43 AM
Subject: RE: [gnso-acc-sgb] Impact on UDRP

My primary questions, refined in response to the below, are as follows:

(1) If the UDRP requires a Complainant to prove that a registrant has "no
rights or legitimate interests in respect of the domain name" (UDRP Policy,
paragraph 4(a)(ii)), then how would a Complainant be able to do so if the
Complainant does not know the registrant's identity and instead knows only
the identity of the registrant's OPOC?  Either (a) the Complainant must have
access to the registrant's identity, or (b) the UDRP must be amended to
eliminate this requirement.

(2) If the UDRP requires that a Complainant send or transmit the Complaint
to "the holder of a domain-name registration against which a complaint is
initiated" (UDRP Rules 1 and 3(b)(xii)), then how would a Complainant be
able to do so if the Complainant does not know the registrant's identity and
instead knows only the identity of the registrant's OPOC?  Either (a) the
Complainant must have access to the registrant's identity, or (b) the UDRP
must be amended to eliminate this requirement.

These are not necessarily the only UDRP-related issues that may exist, but
the general notion is that any changes to Whois (whether via OPOC or
otherwise) are likely to have broader implications than appear to have been
discussed thus far and that these implications may require changes to the
UDRP itself before the changes could be implemented.

Doug Isenberg
www.GigaLawFirm.com


-----Original Message-----
From: owner-gnso-acc-sgb@xxxxxxxxx [mailto:owner-gnso-acc-sgb@xxxxxxxxx] On
Behalf Of Milton Mueller
Sent: Thursday, May 17, 2007 11:47 AM
To: disenberg@xxxxxxxxxxxxxxx; gnso-acc-sgb@xxxxxxxxx;
hdierker2204@xxxxxxxxx
Subject: Re: [gnso-acc-sgb] Impact on UDRP

Doug Isenberg <disenberg@xxxxxxxxxxxxxxx> wrote:

>-- Presumably, a Complainant needs to know the identity of a domain 
>name registrant to prove that the registrant has "no rights or
legitimate
>interests in respect of the domain name" as required by paragraph
4(a)(ii)

Under the OPoC proposal the identity of the registrant (name, location)
would be known. Yes, you additional info would be useful (e.g., life
history, business registrations, etc.) but you have no right to it nor
is it prima facie required. 

You can ask the registrant, via its OPoC, for the basis of their claim
to a right and legitimate interest. If they do not respond that is often
used by UDRP panelists as supporting evidence of bad faith.  

>-- Presumably, a Complainant needs to know the identity of a domain
name
>registrant to prove bad faith under 4(b)(ii) of the Policy, which
refers to
>a domain name registrant engaging in a "pattern" of registering domain
names
>to prevent trademark or service mark owners from reflecting the marks
in
>corresponding domain names. 

Seems obvious to me that such a pattern could be estalbished by having
the same name, jurisdiction, and even the same OPoC. If the registrant
lies on this they may as well lie on the additional information that is
screened. The same "lying pattern" that is often used with the
additional info may show up. 

This business about "premature disclosure" strikes me as odd. If you are
talking about filing a UDRP claim you are disclosing all kinds of things
to the registrant. 

>-- If a Complainant submitted a UDRP complaint to an OPOC instead of to
the
>registrant itself (if the Complainant did not have the registrant's
identity
>and contact information), would that satisfy paragraph 3(b)(xii) of the
>Rules, which requires a Complainant to certify that the Complaint "has
been
>sent or transmitted to the Respondent"? 

If that doesn't count as "sent or transmitted" already the rules could
easily be modiied to make it so.