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Re: [gnso-lockpdp-wg] Domain lock committee - question lists

  • To: "Schneller, Matt" <Matt.Schneller@xxxxxxxxx>
  • Subject: Re: [gnso-lockpdp-wg] Domain lock committee - question lists
  • From: "John Berryhill, Ph.d., Esq." <john@xxxxxxxxxxxxxxxxx>
  • Date: Thu, 10 May 2012 10:41:51 -0400

ยท If the UDRP is decided in favor of the complainant, after expiration of the 15 day "wait period" after a decision, do you move the domain name into an account accessible only to the complainant? When is the lock then removed?

The relevant can of worms to this question are:

1.  UDRP 4(k) states:

"If an Administrative Panel decides that your domain name registration should be canceled or transferred, we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel's decision before implementing that decision."

This clause (which refers to 10 days), is frequently mis-interpreted and has caused problems with post-UDRP litigation. First, it is an "11 business day" wait period, because the registrar is to "wait" for 10 days "after" receiving the decision "before" implementing" the decision. Many registrars incorrectly believe, assuming conditions precedent are satisfied, that the name is to be transferred on the tenth business day. A plain reading is that the ten days is to pass "before" the name is transferred (i.e. that the transfer occurs on the 11th day, after they have waited for the specified ten days of waiting.

One hidden issue in there is when a "day" begins, relative to a transmission made from, say, Minneapolis to Melbourne.

There are two other hidden issues in that question:

One is that registrars frequently do not receive a copy of the Complaint, which specifies the authorized Complainant contact. It is in the only document which defines the authorized complainant contact. The first problem encountered by a registrar receiving a UDRP decision is that it is transmitted "From:" the UDRP provider to the registrar (and we will get into notice addresses later) and to a cc: list of a variety of people which may include multiple complainant email addressses and multiple respondent addresses. So when you ask about an "account accessible only to the complainant" the hidden assumption is that the registrar has any earthly idea, among the collection of correspondents in the decision email, just WHO among those people is authorized to provide further instructions on the part of the complainant.

The second issue is that no domain name is to be registered to any party without assent to the terms of registration. In other words, for those registrars using an "account" system of the type assumed by the question, the complainant seeking transfer of the domain name must perform certain precedent acts, such as establishing an account into which the domain name can be transferred. Now, if the account is set up by a law firm representing the complainant, or by the complainant's IT department, that account may be set up by them to be accessible to any number of people. The registrar has no way of knowing whether an account is "accessible only to" anyone. Quite frequently, the complainant's legal counsel does not cooperate with the registrar, because they believe the name is to be magically transferred, configured, renewed, and set to resolve without their cooperation or input. But the general requirements of domain registration, which are always applicable, require the registrant (or transferee) to first agree to the terms of registration.

The back-end mechanics of implementing UDRP transfers are distinct from "Locking a Domain Name Upon Initiation of a UDRP" which (at least I believed) is the charge of this group.

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