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

[Dan Krimm <dan@xxxxxxxxxxxxxxxx>]

>From where I sit, it seems that it might only entail minor changes to UDRP
to comply, if at all.

Perhaps this WG (if Subgroup A arrives at such a recommendation) could
instantiate an explicit and absolute (rather than merely informally
implied) responsibility of the OPoC to communicate UDRP complaints to the
registrant (with explicit acknowledgement of such action provided to the
Complainant, and failure possibly resulting in blocking the domain), and
thus the OPoC would be considered a reliable conduit for such complaints
under UDRP.  The OPoC could even be given authority to act directly on UDRP
complaints in some cases, if delegated by the registrant.

That may not even require amending UDRP explicitly.  But if so, it seems
like a minor amendment.  It's not like UDRP has to be etched in stone in
every absolute detail.  This WG can note any impacts on UDRP arising from
its Whois recommendations, and I presume GNSO (upon adopting the results of
the WG) can offer suggestions to the Board for how to accommodate its
recommendations for Whois/OPoC in UDRP.

Doesn't seem like a big deal.  Isn't this the whole point of the OPoC, to
be the official point of contact for all external communications with
regard to DNS operations?

Dan

PS -- Apologies to SGA for stepping on their domain from SGB...  ;-)



At 3:35 PM -0400 5/17/07, Doug Isenberg wrote:
>I don't believe the UDRP has been amended since it was approved by ICANN
>in 1999 - so, the process for amending it is not clear (at least not to me
>- though I'd be happy to hear from others on this point).  But, it does
>seem clear that either (1) the UDRP would need to be amended to
>accommodate some of the Whois proposals being discussed or (2) the Whois
>proposals being discussed need to be modified to accommodate the UDRP as
>it has existed since 1999.
>
>Doug Isenberg
><http://www.gigalawfirm.com/>www.GigaLawFirm.com
>
>
>
>From: Hugh Dierker [mailto:hdierker2204@xxxxxxxxx]
>Sent: Thursday, May 17, 2007 3:13 PM
>To: Doug Isenberg; gnso-acc-sgb@xxxxxxxxx
>Subject: RE: [gnso-acc-sgb] Impact on UDRP
>
>Doug,
>
>What is the standard (if there is one) process for amending the UDRP. Your
>logic is inescapable. And the OPoC is going to happen therefor we must
>make the changes necessary elsewhere.
>
>I would be happy to do some "legwork" alone, if this is outside the
>"scope" of this WG. I think I could convince a few of my GA friends to
>help out.
>
>Eric
>
>Doug Isenberg <disenberg@xxxxxxxxxxxxxxx> wrote:
>
>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 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.
>
>
>
>
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