RE: [registrars] Domain Registry of America

["Mitchell, Champ" <Cmitchell@xxxxxxxxxxxxxxxxxxxx>]

A very brief summary of U.S. deception law (and the EU and Australia
follow something similar). Forgive me, but having spent 17 years as a
practicing lawyer in this area, and regardless of what one thinks of
DROA's activity, I wanted to point out that it is NOT the literal
wording of any advertisement or promotional message that determines
whether it will be deemed deceptive. Rather it is the "take away" by
consumers. In short, Bruce, if, as you note below, the average person
would think this is from their current registrar and if they fail to
understand that it is a request to transfer to a new registrar rather
than renew with their current one, then either the FTC in an
administrative action or a judge in a civil action may determine the
piece to be deceptive and enjoin its further dissemination. Further, the
Lanham Act, the U.S. trademark law, has been interpreted by U.S. courts
to have similar provisions that in many cases allows a competitor to
bring an action regardless of what the FTC does. The key issue is, of
course, what is the interpretation and takeaway of the average person.
This is usually shown by survey evidence.  

As to the mining of data bases, since we have suffered more than all the
rest, we can tell you that national laws vary widely on this. As to a
consensus policy on this, it is not just the new registrars that do
illegal data mining (illegal under U.S. laws). Active members of the
registrar constituency who were there from the earliest days and who sit
in the room at every ICANN meeting do it also. One very active member
who attends all ICANN and constituency meetings, has even described to
me in general terms what he has done to mine our whois. His point was
that he could get around our anti-mining efforts but he was tired of
having to pay engineers to get around them every time we changed them
(which is frequently). Somehow he thought this was going to motivate me
to "whitelist" him as he called it. Pretty blatant and since he will be
reading this, he will probably get a chuckle out of it, but that's the
variety in our constituency. Best, Champ

-----Original Message-----
From: owner-registrars@xxxxxxxxxxxxxx
[mailto:owner-registrars@xxxxxxxxxxxxxx] On Behalf Of Bruce Tonkin
Sent: Sunday, July 31, 2005 6:36 PM
To: Registrars Constituency
Subject: RE: [registrars] Domain Registry of America

Hello Bob,

> 
> Isn't there something ICANN can do about this 
> misrepresentation?  Should we not expect some response by 
> ICANN to the blatantly deceptive practice?
> 

I think that some regulatory bodies (e.g FTC) have already taken some
action against this sort of thing.  The notice is now worded very
carefully to avoid prosecution.   The trouble is that most people don't
read the notice carefully, and think the notice is from their current
supplier of domain names.

In Australia, we did two things to try to minimise this sort of
activity:
(1) Removed the postal address and domain name expiry date from the
public WHOIS  (this removed the source of information for this type of
notice)
(2) Established a code of conduct around domain name renewals that binds
all registrars and their resellers.   This still doesn't stop entities
using the retail websites of registrars to register names resulting from
such notices.

Nominet, the operator of the .uk registry,  took legal action against an
Australian company that was mining their WHOIS to build a database for
sending renewal notices.

>From an ICANN perspective - there is work on reviewing the WHOIS
service.
There has not been any action on a code of conduct amongst registrars
for some time.

Regards,
Bruce Tonkin