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

[Hugh Dierker <hdierker2204@xxxxxxxxx>]

This area is not clear and not right.  The process is heavily loaded in favor 
of IP interests.  Although good arguments are being made that it in fact hurts 
the policy of protecting "commercial property interests" in thought.

The fault of the system lies in a dearth and void of advocacy for the 
Registrant.  Rights and common sense are not always just going to flow.  
Sometimes we need a true adversarial process to ferret out the snags and 
entanglements of two sides of a weighty concept.

What ICANN has always missed and since the elections, resulting in Karls' 
placement, there has been no desire to allow registrants a say.
Roberto is always open.  But there is a lack of leadership. A total distrust 
for those moving in a representative direction.  

This barrier must be overcome for us to have any legitimate shot at coming up 
with balanced solutions.  We have enough voices crying in the wilderness, what 
we need is some good old fashioned charismatic leadership and the Jeffrey's and 
Sotiris's and Joops' and Georges to support it. Not just beat the hell out of 
anyone who tries. Egos must be set aside to get the foundation up and running.




________________________________
From: Debbie Garside <debbie@xxxxxxxxxxxxxxxxxx>
To: Jeffrey A. Williams <jwkckid1@xxxxxxxxxxxxx>; disenberg@xxxxxxxxxxxxxxx
Cc: Accountability Headquarters <ga@xxxxxxxxxxxxxx>
Sent: Tue, June 15, 2010 2:53:22 PM
Subject: RE: [ga] RE: [gnso-acc-sgb] Impact on UDRP

 
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
>>>
>>>
>>>-----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!)
>>>"Obedience of the law is the greatest freedom" 
>>>      -
>>>   Abraham Lincoln
>>>
>>>"Credit should go with the 
>>>      performance of duty and not with what is very
>>>often the accident of 
>>>      glory" - Theodore Roosevelt
>>>
>>>"If the probability be called P; the 
>>>      injury, L; and the burden, B; liability
>>>depends upon whether B is less 
>>>      than L multiplied by
>>>P: i.e., whether B is less than PL."
>>>United 
>>>      States v. Carroll Towing  (159 F.2d 169 [2d Cir. 
>>>      1947]
>>>===============================================================
>>>Updated 
>>>      1/26/04
>>>CSO/DIR. Internet Network Eng. SR. Eng. Network data security 
>>>      IDNS. div. of
>>>Information Network Eng.  INEG. INC.
>>>ABA member 
>>>      in good standing member ID 01257402 E-Mail 
>>>      jwkckid1@xxxxxxxxxxxxx
>>>Phone: 
>>>    214-244-4827
>>>