RE: [bc-gnso] FW: [gnso-sti] Common Grounds Paper

["Deutsch, Sarah B" <sarah.b.deutsch@xxxxxxxxxxx>]

While I have no problem toning down the "blind eye" references, the
proposed language below goes in the other direction by suggesting that
highly automated functions somehow protect registrars and registries
from liability.  Courts, however, have found registrars in bad faith
even when they raise the argument that they used an automated process.
See, for example:
 
 http://www.ilrweb.com/pfdocuments/ilrpdfs/verizoncal_v_navigation.pdf
<http://www.ilrweb.com/pfdocuments/ilrpdfs/verizoncal_v_navigation.pdf>

 
Bad faith can and should be triggered by any number of factors
(including those listed in the Anticybersquatting Consumer Protection
Act and UDRP) and should not be limited to situations where the registry
fails to perform specific RPMs.
 
Sarah
 

Sarah B. Deutsch
Vice President & Associate General Counsel
Verizon Communications
Phone: 703-351-3044
Fax: 703-351-3670
sarah.b.deutsch@xxxxxxxxxxx
 

________________________________

From: owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] O n
Behalf Of Steve DelBianco
Sent: Thursday, November 05, 2009 2:25 PM
To: Zahid Jamil; 'bc - GNSO list'
Subject: Re: [bc-gnso] FW: [gnso-sti] Common Grounds Paper


Thank-you, Zahid, for your exhaustive efforts on the rights protection
mechanisms.

As you requested, here's one comment on the draft BC position on Post
Delegation Dispute Mechanism (PDDM):

Twice in your draft you express concern about Registry Operators turning
a "blind eye" to infringements.  I'm a fan of clever phrases such as
"turn a blind eye", but in this case I think the rhetoric may go too
far.  

One of my registry members reminded me in Seoul that registry operations
are highly automated processes.  There is no human "eye" looking at
registration Add records as they come in from registrars.  Accordingly,
I suggest replacing the two "blind eye" concerns in the BC comments with
this statement:



        Registry operations for adding new names should be a
highly-automated function, and the failure of a registry to take
affirmative steps to assess whether a domain name violates trademark
laws should not in itself constitute bad faith or systemic infringement.
However, a registry operator who fails to perform the specific rights
protection mechanisms enumerated in its Registry Operator's Agreement
should be subject to PDDM claims, as set forth in the IRT Final Report. 
        



Again, thanks for working this on our behalf.


        
        

-- 
Steve DelBianco
Executive Director
NetChoice
http://www.NetChoice.org and http://blog.netchoice.org 
+1.202.420.7482 


On 11/4/09 12:37 PM, "Zahid Jamil" <zahid@xxxxxxxxx> wrote:


        
        Would like to ask members that if there are any comments on the
draft BC position on RPMs that was sent out earlier?  If I don't hear
anything on whether there will be comments and that I should hold
sending this out to the GNSO, I will send it out by tomorrow to both the
GNSO and the STI.