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From: "John Berryhill" <john@xxxxxxxxxxxxxxxxx>
To: <tmtopics@xxxxxxxxxxxxxx>, "'Doug Isenberg'" <disenberg@xxxxxxxxxxxxxxx>
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Thread-Index: AcayXFEFIKhi5zXbSt2npZK221Ks4QCUK16AAWNbq9AAAF29oAAGj+Dg
Subject: (INTA List) Proposed changes to WHOIS databases
>I was unaware (and am not convinced) that "few complainants actually send
>UDRP complaints to the domain name registrant anyway," given that the UDRP
>Rules require the complainant to state in the complaint itself that it has
>done so.
With all due respect, Doug, I don't see you defending very many UDRP's. In
most cases I have dealt with in the last several months, the notification of
commencement from the dispute resolution provider is the first notice
received by the registrant.
The reason for the common game of "hide the complaint" is as a defensive
measure against cyberflight.
It is extremely common in situations where there are extensive exhibits not
available in electronic form. Those are not forwarded by the dispute
resolution provider, and the typical complainant behavior is to use a
private courier service to send material to a PO box, and then claim "false
contact data" when the delivery is, predictably, refused to be delivered to
the PO box by the private courier service.
Only on rare occasion will a panel even note the rule violation in passing:
http://arbiter.wipo.int/domains/decisions/html/2002/d2002-0189.html
"There is also the Complainant's unwillingness to forward documentation to
the Respondent's lawyer even after the WIPO Center had directed it to do
so."
Was the Complaint in that case rejected on the basis of the Complainant's
*admitted* and flagrant rule violation? No. There is NO penalty for
failing to serve the complaint on the Respondent. None. That is otherwise
known as a non-rule.
>Perhaps the issue is that the contact information available to the
>complainant is inaccurate and, therefore, the domain name registrant fails
>to receive what the complainant has actually sent.
...which does not explain the numerous instances where the dispute
resolution provider has no difficulty contacting the respondent.
> whether lack
>of access to any contact information would make compliance with the UDRP
>Rules impossible. I believe the DRS does not require a complainant to send
>a copy of the complaint to the registrant; the UDRP does.
The UDRP does not require what you think it requires. What it requires on
the part of the Complainant (in Rule 3(b)(xi)) is for the Complainant to
state that it has sent the Complaint in accordance with Rule 2(b). If you
want to maintain otherwise, then cite the rule you think you are citing.
Rule 2 states:
----------------
2. Communications
(a) When forwarding a complaint to the Respondent, it shall be the
Provider's responsibility to employ reasonably available means calculated to
achieve actual notice to Respondent. Achieving actual notice, or employing
the following measures to do so, shall discharge this responsibility:
(i) sending the complaint to all postal-mail and facsimile addresses
(A) shown in the domain name's registration data in Registrar's Whois
database for the registered domain-name holder, the technical contact, and
the administrative contact and
(B) supplied by Registrar to the Provider for the registration's billing
contact; and
(ii) sending the complaint in electronic form (including annexes to
the extent available in that form) by e-mail to:
(A) the e-mail addresses for those technical, administrative,
and billing contacts;
(B) postmaster@<the contested domain name>; and
(C) if the domain name (or "www." followed by the domain name)
resolves to an active web page (other than a generic page the Provider
concludes is maintained by a registrar or ISP for parking domain-names
registered by multiple domain-name holders), any e-mail address shown or
e-mail links on that web page; and
(iii) sending the complaint to any address the Respondent has
notified the Provider it prefers and, to the extent practicable, to all
other addresses provided to the Provider by Complainant under Paragraph
3(b)(v).
(b) Except as provided in Paragraph 2(a), any written communication to
Complainant or Respondent provided for under these Rules shall be made by
the preferred means stated by the Complainant or Respondent, respectively
(see Paragraphs 3(b)(iii) and 5(b)(iii)), or in the absence of such
specification
(i) by telecopy or facsimile transmission, with a confirmation of
transmission; or
(ii) by postal or courier service, postage pre-paid and return receipt
requested; or
(iii) electronically via the Internet, provided a record of its
transmission is available.
-------------------
You do not need any whois data whatsoever to comply with Rule 2(b), as no
method of contact is specified in Rule 2(b). The Complaint Service Rule in
Rule 3 does NOT state that you are to comply with the various forms of
contact recited in the several parts of Rule 2(a).
This points up the fact that the reference to "2(b)" in Rule 3 is an obvious
drafting error in the UDRP Rules, it is beyond clear that no whois data is
required to send the complaint to postmaster@<domain>.<tld> nor is any whois
data required to send the complaint to the contact information, if any,
provided on the web page.
Many people do not have "postmaster" set up as a valid email address, and
many webpages do not have contact information on them. You are aware of
this, and although these methods of contact are co-equal with whois data in
the UDRP rules, you do not seem to think it is "impossible" to comply with
the UDRP rules in the absence of web page or "postmaster" contacts.
So, if "postmaster" is not a valid email address for the domain, then do you
further maintain that it is "impossible" to comply with the joint notice
requirements of Rule 2(a)? Why or why not? The elements of Rule 2(a) are
all joined by "and", but I have never heard anyone seriously argue that the
lack of contact information on a web page makes it "impossible" for a
complainant to comply with the UDRP.
Clearly, if there are no admin, technical, or billing contacts, then one
need not send to non-existent addresses. But these are by no means the only
form of contact required by the UDRP.
Stepping back a bit, the subject "Proposed changes to WHOIS databases" is
itself erroneous, as there has been no discussion within ICANN whatsoever to
change the required contact data elements. What HAS been going on is a
discussion of the "purpose" of whois data, because various countries' data
protection laws forbid disclosure of collected customer data unless such
disclosure is consistent with the purpose for which the data was collected.
So the question of compliance with actual honest-to-goodness real live laws,
enacted by representative democracies, is a much more profound "compliance"
issue than whether one can navigate the several methods of contact with a
domain registrant prescribed by the UDRP.