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

[Jeff Williams <jwkckid1@xxxxxxxxxxxxx>]

Dr. Dierker and all,

  I believe all this depends of the type of complaint and what the
evidence
that the complainant initially provides in disclosure.  For a bad faith
registration
of a domain name as Doug's example the evidence should be simple enough
to at least warrant further investigation and the name of the registrant
as well
as address would a this time only, be necessary.

  However in other types of complaint's knowledge of the perps name
may not be necessary for rapid take down to proceed if this is in fact
the remedy that is needed or is otherwise appropriate, ergo sought.

  If however there is a criminal element involved with a domain name,
than of course the name and address of the actual registrant must be
disclosed by the agent/OPOC or if refused or unreachable for what
ever reason, than a suspension of the domain name is warrant, and
when the agent/OPOC is reached immediate disclosure of the
actual registrant or that agent/OPOC should be held in contempt
and thus incarcerated until such time the name and postal address
of same is disclosed.  However jurisdictional considerations come
into play here as to enforcement of contempt charges and reveling
of registrants name and postal address by agents/OPOCs given
significant differences in Privacy laws and/or regulations where
cross or multiple jurisdictional are involved.

  All the above remarks I believe should also apply to third
party accessors of Whois data, at a minimum.

Hugh Dierker wrote:

>    Great stuff,
>
>   "Lying Pattern and Premature Disclosure" sounds like the making of a
> lurid novel.
>
>   It seems to me that we are all in agreement that any OPoC will be
> the agent for service of process for the registrant.(DNH)  Obviously
> disclosures would then be right behind. Doug, you know how the burden
> of proof works and of course the "claimant" always has to make first
> disclosure.
>
>   Back to the Novel, I think stripping a holder of all his privacy,
> and "legwork" needs to be weaved in there somehow.
>
>
>   Eric
>
> Milton Mueller <mueller@xxxxxxx> wrote:
>   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.
>
>
>
>
>

Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders 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
 Registered Email addr with the USPS
Contact Number: 214-244-4827