RE: [registrars] Interesting Opinion From ICANN

["John Berryhill" <john@xxxxxxxxxxxxxxxxx>]

>Could you give some more background on this? 

Certainly.

As many registrars had assumed, the licensing and identity disclosure language of RAA 3.7.7.3 has normally been used in the course of UDRP disputes to determine the procedure whereby registrar-operated proxy services will respond to the DRP commencement inquiry by identifying the actual registrant of the domain name.

The normal course of events is described in Ohio Savings
Bank v. 1&1 Internet, Inc. and David Rosenbaum, WIPO Case No. D2006-0881
http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0881.html :

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When such circumstances arise, the Panel understands that the Center's current practice is typically to require the complainant to amend the complaint - either to name both the privacy service registrant and the party using the privacy service or to simply name the party using the privacy service. This practice is sensible and has the benefit of trying to get notice of the proceeding to the party that is most affected the proceeding.
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In a currently pending UDRP dispute, the Complainant has objected at great length to the identification of the real party in interest of a proxy registration, and has insisted on maintaining the registrar as the respondent in the proceeding.

The case manager passed the issue to the Panel, which has issued a procedural order for various parties involved in the dispute to explain what, if anything, should be the procedure for proxy registrations, such as the one which WIPO maintains through Network Solutions Private Registration for wipo.net.

In the course of these events, Mr. Cole of ICANN has stated the position that any domain name which is (a) registered to a registrar and (b) registered through that registrar, is an invalidly-registered domain name.  The preceding email is a direct quote from Mr. Cole's email, referring to a proxy registration which was registered in the name of the Registrar (in the manner that, say, Network Solutions Private Registration Service names are registered) specifically with respect to domain name registration contracts:

" Given that this entity is an accredited registrar, it would appear that this registration may have been in violation of paragraph 3.7.7 et seq. of the RAA, which "require[s] all Registered Name Holders to enter into an electronic or paper registration agreement with Registrar . . . ."  Specifically, because a party cannot enter into a binding contract with itself, it would appear that such a registration was allowed without the requisite registration agreement..."

So the obvious question is how can domain names such as GoDaddy.com, NetworkSolutions.com, Register.com, etc., be validly registered domain names?  MOST registrars register their own domain names using their own registrar cred.

But Mr. Cole is absolutely correct.  Since a party cannot contract with itself, then self-registrations by a registrar must be invalid.

One must note that Mr. Cole stated "it would appear" and "may have been".  This is lawyer-speak for saying things you don't want to be held responsible for actually saying.  So, *it would appear* that he *may have been* hitting the rice wine a little hard before he wrote that.  To some, *it would appear* that he *may have been* stating an opinion which, like many, is outcome based rather than rule based.

It will be an interesting decision, since if ICANN and the complainant in this WIPO proceeding, it is going to result in a complete change in how disputes are handled relating to proxy registrations at WIPO.

But the wider consequences of Mr. Cole's position if, as it appears he may have been stating, are as interesting as will be the attempt to explain them in a way that does not have the consequences stated - i.e. that a registrar cannot enter into a domain registration contract with itself.

John