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

[Jeff Williams <jwkckid1@xxxxxxxxxxxxx>]

Dr. Dierker and all sgb members,

  I don't believe another WG is needed or even workable to determine
what the impact on UDRP from this subgroup may be or actually is.
In fact whatever this subgroup determins as it relates to WIPO's
UDRP can and should be part of our final recommendations and than
let the GNSO and the ICANN Bod review, modify if necessary,
and pass on to WIPO as may be appropriate.

Hugh Dierker wrote:

>    I have now done my homework and exchanged posts and spoken with my
> experts and feel extrememly confident that the UDRP was a consensus
> document and to change it requires a TF, a WG and a consensus filtered
> through staff and presented for the BoD for voting.
>
>   In this case it would appear that the GNSO would be the place where
> the TF/WG would orginate, however I seen no restrictive language
> prohibiting its' starting elswhere and finishing with the council.
>   (you see while these groups will be formed by and under the council,
> nowhere does it say it cannot originate elswhere)
>   My particular bent is the GA of course.
>
>   Eric
>
> Doug Isenberg <disenberg@xxxxxxxxxxxxxxx> wrote:
>         v\:* {behavior:url(#default#VML);}  o\:*
> {behavior:url(#default#VML);}  w\:* {behavior:url(#default#VML);}
> .shape {behavior:url(#default#VML);}
> st1\:*{behavior:url(#default#ieooui) }                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
>   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.
>
>
>
>
>
>
> ---------------------------------
>
>   Looking for a deal? Find great prices on flights and hotels with
> Yahoo! FareChase.
>
>
>
>

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