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

["Debbie Garside" <debbie@xxxxxxxxxxxxxxxxxx>]

Jeff
 
Zone Files made available for review is not the same as Zone Files made
available for FTP download with timed updates.  See my previous message to
Eric where I detail the service offered by Verisign.
 
As to UDRP, I am no expert, although I do subscribe to the WIPO Domain Names
Decisions List.  However, privacy is no defence in law (as far as I know)
and if there is an accusation of Trademark infringement then the owner must
provide information to UDRP.  A two tier process in this case may allow for
UDRP to look at the complaint and to decide whether to ask the Registrar to
release information about the actual owner of the domain. The Registrar
should be compelled to provide answers if a UDRP is filed.  I think if this
were the case, Registrars would quite happily write a tiny clause into their
privacy contracts stating: "in the event of a UDRP claim being filed your
details will be released to the other party unless justification can be
shown as to why it shouldn't.  This justification would have to go to the
UDRP process.  Remember these are lawyers and so there is (hopefully) some
sort of client confidentiality which may be maintained in the first tier of
such a process.
 
Anyway, I'm no expert on UDRP (as I am sure you can see).  These are just
thoughts off the top of my head.  
 
Debbie


  _____  

From: owner-ga@xxxxxxxxxxxxxx [mailto:owner-ga@xxxxxxxxxxxxxx] On Behalf Of
Jeffrey A. Williams
Sent: 15 June 2010 21:54
To: debbie@xxxxxxxxxxxxxxxxxx; disenberg@xxxxxxxxxxxxxxx
Cc: 'Accountability Headquarters'
Subject: Re: [ga] RE: [gnso-acc-sgb] Impact on UDRP



Debbie and all,

 

  I agree that all zone files should be avaliable for public review, and
most already are if you know how to

access same.  So I am a bit confused as to what your meaning of 'Made
availiable' is exactly.  ??  Can

you please elaborate?

 

  Secondly any privacy service regarding a Domain Name such as a proxy under
contract at the time

of registration and in accordance with current ICANN policy if violated in
any way ergo obtained by

other than a court order in jurisdiction of the Domain Name holder is not
valid and that domain name

holder if so violated has the legal right to contest in jurisdiction, such a
illegal act accordingly.  What

'Details' are you suggesting under the UDRP proceedure should or must in
your opinion, be provided?




-----Original Message----- 
From: Debbie Garside 
Sent: Jun 15, 2010 3:24 PM 
To: 'Hugh Dierker' 
Cc: 'Accountability Headquarters' 
Subject: [ga] RE: [gnso-acc-sgb] Impact on UDRP 


This is exactly why it is necessary for a lo-cost monitoring/notification
system.  I know exactly how a system can be designed in order to deal with
just these issues.  I cannot pretend that it is easy but it is quite doable.
However, it is crucial that Zone Files for all ccTLDs and gTLDs are made
available.
 
If a Registrar offers some sort of privacy service then the onus is on the
Registrar to provide the details as soon as a UDRP is filed.  I am not
totally familiar with UDRP but it would seem to require a two tier process
in such a case.  As in, Complainant files a preliminary complaint at which
time the Registrant is informed by the Registrar that a complaint has been
filed and by whom (this gets around the vexatious complainant issue).  The
Registrant is given the option of relinquishing disputed domain or providing
his/her details for the UDRP to go forward.
 
Debbie


  _____  

From: Hugh Dierker [mailto:hdierker2204@xxxxxxxxx] 
Sent: 15 June 2010 19:49
To: debbie@xxxxxxxxxxxxxxxxxx
Cc: Accountability Headquarters
Subject: Fw: [gnso-acc-sgb] Impact on UDRP


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 <http://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.





Regards,

Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 300+k members/stakeholders and growing,
strong!)
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