Re: [gnso-irtp-b-jun09] Charter Question (C): Change of Registrant

[George Kirikos <icann@xxxxxxxx>]

Hello,

On Thu, Jul 15, 2010 at 6:42 AM, Michele Neylon :: Blacknight
<michele@xxxxxxxxxxxxx> wrote:
>> I think before you can define "Change of Registrant", one would need
>> to fully and carefully define what a *registrant* is first. And it's
>> not as simple as it might seem, as it would need to capture various
>> scenarios.
>>
>> For example, suppose an individual does a legal name change from:
>> "Jane Smith" to "Jane Doe." The registrant has not "changed", but the
>> displayed identity has been updated. Same as when a company renames
>> itself, or even changes its domicile or does an amalgamation.
>
> Yes - and what's your point?
>
> It's still a change of registrant - an amalgamation or corporate rename means 
> that all the contracts etc., would have to be updated ..

My point was that simply renaming a person or a company does not
actually change the registrant. It's the exact same human being, for
example, in the case of a name change of an individual. So while the
WHOIS has updated the "Registrant" field from "Jane Smith" to "Jane
Doe", it's the EXACT SAME REGISTRANT. This was my point that one needs
to be careful about how one defines a registrant, because the "label"
one attaches to a certain registrant might change, but it's *not*
considered a change of registrant.

> If the domain is held in escrow or whatever then one would assume that there 
> is some sort of paper trail for this
>
> Whois is only part of the system - it's just the easiest bit to talk about ..

Agreed, that's why I said above, just looking at WHOIS changes doesn't
tell the entire story, at least under the current WHOIS. If one wanted
to bring in a policy that explicitly recognized a "Change of
Registrant", then there would probably need to be a specific piece of
data in the WHOIS like:

Date of Last Change of Registrant: June 1, 2010

which would capture things explicitly. Then when "Jane Smith" changes
her name on July 15, 2010 to "Jane Doe" and updates the WHOIS, the
field above would *not* change, but would remain as June 1, 2010.

>> With various proxy services out there too, it becomes complicated. And
>> there are probably some other scenarios out there that would need to
>> be encompassed by a definition.
>
> Irrelevant
>
> The registrar would have the real contact details

Spoken just like some registrars, who consider input by the public as
"irrelevant." However, it is relevant, because one might want
independent validation of a certain assertion by a registrar. Some
transparency would help. Not all registrars tell the truth. Some might
even lie and revise history.

Suppose a proxy service exists at a certain registrar, for example. A
domain is created, example.com, on May 1, 2000, and the true
registrant ("John Smith") is hidden behind a proxy service's WHOIS
("Acme Registrar Privacy Service"). On June 1, 2004, the TM "Example"
is registered in the class of widgets by some 3rd party, and becomes
very valuable, with lots of traffic to example.com. On September 1,
2008, the registrar decides they want to buy the name from the true
registrant, for their own account. They do so. THE REGISTRANT HAS
CHANGED, BUT THE WHOIS HAS NOT. If there's deemed to be a "change of
registrant", though, the new owner would be at risk, because they
would have lost their "priority date" relative to that registered
trademark (i.e. the domain name might be considered to have been
registered *AFTER* the trademark, because of the change of
registrant). The incentive would obviously exist for the registrar to
lie and revise history, especially if they could avoid being caught.

If you want to see examples of the extent of the "creativity", for
lack of a better word, to which registrars will go, they're not hard
to find. Just look up "Standard Tactics LLC", for example:

http://domainnamewire.com/2008/12/03/standard-tactics-llc-how-godaddy-profits-from-expired-domains/
http://techcrunch.com/2008/12/18/godaddy-moves-to-close-shady-standard-tactics-subsidiary/

Even more "educational" is to search for "Standard Tactics" at WIPO or NAF:

http://domains.adrforum.com/domains/decisions/756892.htm
http://domains.adrforum.com/domains/decisions/820358.htm
http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0164.html
http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1632.html

especially considering the DAGv4 says:

http://www.thedomains.com/2010/06/01/will-a-domainer-who-lost-a-few-udrps-be-barred-from-owning-or-being-involved-with-a-new-gtld/

"Is the subject of a pattern of of decision indicating liability for
or repeated  practice of bad faith by acquiring domain names for the
primary purpose of selling, renting or otherwise transferring domain
name registrations to trademark or service mark holders or to a
competitor for valuable consideration in excess of documented out of
pocket costs."

We're living in interesting times, folks.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/