Re: [gnso-lockpdp-wg] For your review by 25 July 2012

[Luc SEUFER <lseufer@xxxxxxxxxxx>]

Hi All,

Just a few comments from my  -maybe biased- registrar point of view:

In my opinion the so-called cyberflight is more a boogeyman story that some 
Lawyers like to tell to their scared clients rather than a real issue that 
would be settled by having Registrar running the risk of bereaving Registrant 
from their rights without receiving a (UDRP provider) binding request to do so.

First of all, in order to establish the 3 elements to obtain a successful UDRP 
decision, one is most likely to inform Registrant that their registration 
and/or use of the registration infringes on one's rights. As such Rregistrant 
should in most, if not all cases be informed of the complainant's claim before 
the UDRP complaint is lodged. If Registrant really is a cybersquatter, they 
certainly won't wait for the complaint submission to try to "hide".
Furthermore, the UDRP policy allowing Registrant to change their details during 
the administrative proceedings, applying a lock before the UDRP provider notice 
would not be effective as Registrant remains entitled to do so afterwards.

As to the registrar transfer, in application of the IRTP, a domain name may not 
be transferred to another registrar for  a 60 days period after a transfer 
occurred. This being, whether the transfer takes place before the UDRP provider 
notice to the Registrar or during the administrative proceedings should have 
the same consequences. In any case the complainant will have to amend its 
complaint accordingly.

Considering those "risks" on one side and those Registrar would have to bear by 
locking a domain name prior to the complaint review by the UDRP provider I am 
convinced that we should not try to alter this part of the policy.

However and as pointed out by Matt, maybe we could think of ways to have UDRP 
providers modify their supplemental rules so that the serving of the complaints 
remains the sole duty of the UDRP provider.

In addition and from a sheer pragmatic point of view, it would be easier for 
Registrars to know that when the notice is sent by one of the authorized UDRP 
providers via an email address they know (and which email does not have a 10 
mega PDF files attached to it), then they have to apply the  lock measures 
without any further thinking.


@ Marika, I have no suggestion on the survey findings per se, but have several 
comments on their interpretation, so I will keep them for the public comment 
period.

All the best,

Luc


On 24 juil. 2012, at 18:54, "Dorrain, Kristine" 
<kdorrain@xxxxxxxxxxxx<mailto:kdorrain@xxxxxxxxxxxx>> wrote:

Volker,

Agreed, which is why I think the “observant” Registrar who noticed that the 
complaint was sent to the Provider and the Registrant could have the power to 
lock, however I don’t think those powers of observation should be expected on 
the part of any Registrar.  I think the Providers will always be in the 
position of having to request the lock and other information.


Matt, as far as the data not demonstrating that the “vast majority” wait until 
the Provider lock request, I will also say that Registrars might be locking 
before we ask, and we just don’t know it (because they always respond to us 
“yep, it’s locked”, so I couldn’t know exactly when the lock occurred), 
therefore I may have misspoke, based on my perception.

Kristine


From: Volker Greimann [mailto:vgreimann@xxxxxxxxxxxxxxx<http://key-systems.net>]
Sent: Tuesday, July 24, 2012 11:34 AM
To: Dorrain, Kristine
Cc: 'Schneller, Matt'; 'Marika Konings'; 
'Gnso-lockpdp-wg@xxxxxxxxx<mailto:Gnso-lockpdp-wg@xxxxxxxxx>'
Subject: Re: [gnso-lockpdp-wg] RE: For your review by 25 July 2012

Just a small addendum:

As registrars, we are bound to the UDRP. Our right to lock a domain name flows 
from that policy. The policy itself quite clearly states that transfers are 
prohibited during "a pending administrative procedure". A proceeding - as I 
understand it - can only be pending when it has been submitted to the provider. 
Ergo, we would not be authorized to prevent a transfer before we receive 
information that a procedure is actually pending.

Volker

Since I’m the one that brought it up, I will say we’ve seen the “fake filing” 
probably 5 times in the 7 years I’ve been with NAF.  And it’s usually the 
registrar who says “hey, I got this complaint and I locked and I never heard 
from you, what’s up?”  It’s extremely rare, at least to my knowledge.

I agree, that where a complainant has filed the complaint and then 
simultaneously served the registrar and registrant, an observant Registrar 
would notice that and could act immediately.  I agree that would (does) help 
the cyberflight issue and that we do not want to discourage that.

Kristine


From: Schneller, Matt [mailto:Matt.Schneller@xxxxxxxxx]
Sent: Tuesday, July 24, 2012 11:17 AM
To: 'Marika Konings'; Volker Greimann; Dorrain, Kristine
Cc: 'Gnso-lockpdp-wg@xxxxxxxxx<mailto:Gnso-lockpdp-wg@xxxxxxxxx>'
Subject: RE: [gnso-lockpdp-wg] RE: For your review by 25 July 2012

Hi all,

Does anyone have any data for how often they have seen complaints sent to 
registrars but where UDRPs are not filed?  I just haven’t run into it, so some 
numerical context might be useful.  I am not entirely sure what the real 
benefit would be to the party who does that.  The registrar survey indicated 
that registrar locks usually prevent an immediate transfer to another registrar 
for the short term (not usually a crucial thing that has to be done right away 
– nothing bad happens to it if it remains at its current registrar, and most 
domains aren’t pinged around between registrars on a regular basis) or briefly 
prevents changes to registrant data (ditto – ownership information for most 
domains is quite static); changes to DNS server information and etc. are 
usually still permitted.  Within a couple of business days, if there is no 
notice from the Provider, the lock is presumably removed.  It just seems like a 
lot of hassle to do, and yield minimal (if ill-gotten) benefits to the 
submitter of the fake complaint.

As to the wording here, in the final version of the registrar survey, 46% of 
registrars indicated that they locked on receipt of the complaint from 
complainant and 49% indicated that they lock on notice from the provider.  I’m 
not sure that a statement that the “vast majority” of registrars lock only upon 
receipt of notice from the Provider quite fits the registrar survey data.  In 
addition, as a policy matter, a complaint-driven lock has some concrete 
benefits.

WIPO (WIPO Supp. R. 4(c)) and NAF rules (NAF Supp. R. 4(d)(1)) require copying 
the registrar on the complaint at the time of filing.  At least in UDRPs that I 
have seen, the complainant just e-mails the complaint to the Provider, one of 
the filing triggers, and cc’s the registrar and registrant.  This ticks off all 
the service requirements, and provides the registrar notice that the complaint 
has been officially filed with the Provider and served on the registrant.

This simultaneous service creates some real issues.  As survey results 
indicated, there is almost always a period of time between a few hours to a 
couple of actual (non-business) days between filing (and thus service on / 
notification to the registrant and registrar) and the notice from the Provider, 
and a similar time gap between notice from the Provider and implementation of 
the lock by the registrar (with a very very slow outliers).  This time period 
gives a registrant intent on creating problems the time (s)he needs to switch 
registrant information details and/or registrars to push the parties’ mutual 
jurisdiction into a remote or inconvenient location.  If the registrant 
information and/or registrar changes after filing but prior to issuing the 
notice – a pretty frequent occurrence – the Providers will typically require 
the complaint to be updated.  This takes time and costs money, obviously, but 
that’s almost secondary to the registrant / registrar “flight.”  Without a lock 
that is applied really quickly afterfiling, there is no way for a complainant 
to prevent flight from occurring.  Since 46% of responding registrars are 
providing a more-immediate lock, and that lock helps prevent problematic 
registrar/registrant flight, I don’t know that we want to implicitlydiscourage 
registrars from taking this step (or others from supporting it in comments), 
since it has some really concrete benefits in a lot of cases.

Maybe an option that could be considered in parallel with the locking timing is 
just a slightly different reading of the Policy by the Providers.  If the 
complaint captioning and mutual jurisdiction agreed to by the complainant at 
the time of filing (evidenced by current WHOIS records) controlled and did not 
need to be revised or the mutual jurisdiction accession changed based on 
post-complaint-filing changes to registrant information or registrar transfers, 
the timing of the registrar lock would be proportionately slightly less 
important.

Matt
206-279-1895

From: owner-gnso-lockpdp-wg@xxxxxxxxx<mailto:owner-gnso-lockpdp-wg@xxxxxxxxx> 
[mailto:owner-gnso-lockpdp-wg@xxxxxxxxx]<mailto:[mailto:owner-gnso-lockpdp-wg@xxxxxxxxx]>
 On Behalf Of Marika Konings
Sent: Tuesday, July 24, 2012 8:19 AM
To: Volker Greimann; Dorrain, Kristine
Cc: 'Gnso-lockpdp-wg@xxxxxxxxx<mailto:Gnso-lockpdp-wg@xxxxxxxxx>'
Subject: Re: [gnso-lockpdp-wg] RE: For your review by 25 July 2012

Based on  your comments, would it be helpful to add the following after the 
charter question in the different outreach documents: [Note from the WG: only 
the UDRP Provider can notify a Registrar that a complaint has been officially 
filed and in the vast majority of cases, Registrars will only implement a lock 
based on the request by the UDRP Provider]

With best regards,

Marika

From: Volker Greimann 
<vgreimann@xxxxxxxxxxxxxxx<mailto:vgreimann@xxxxxxxxxxxxxxx>>
Date: Tuesday 24 July 2012 16:42
To: "Dorrain, Kristine" <kdorrain@xxxxxxxxxxxx<mailto:kdorrain@xxxxxxxxxxxx>>
Cc: Marika Konings <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>>, 
"Gnso-lockpdp-wg@xxxxxxxxx<mailto:Gnso-lockpdp-wg@xxxxxxxxx>" 
<Gnso-lockpdp-wg@xxxxxxxxx<mailto:Gnso-lockpdp-wg@xxxxxxxxx>>
Subject: Re: [gnso-lockpdp-wg] RE: For your review by 25 July 2012

Speaking for a registrar, I agree with Kristine. We need evidence that the UDRP 
complaint has been filed, which is not evidenced by the submission of the 
complaint to us by the complainant, but only upon the initiation of procedures 
by the UDRP provider. We have also seen cases where we received a complaint, 
but not the opening questionaire, so locking the domain name would have been 
the wrong way to go.

OTOH, we do realize that this causes a smallish loophole, as a registrar so 
inclined might warn the registrant of the complaint before being required to 
lock it and enable him to enact all kinds of shenanigans. Not sure how common 
this is though, we never forward the complaint to the registrant. For about 50% 
of all complaints we receive, we do not receive the complaint before we receive 
the provider questionnaire, maybe because of this risk...

Best,

Volker
Marika, this looks good.  My only question involves the first charter question 
and how we want to present that.  The question addresses steps *complainants* 
must do to obtain a lock, however, only the UDRP  Provider can tell a Registrar 
that a complaint has really been filed (some complainants actually send a UDRP 
complaint to the respondent and registrar and never actually file it—it’s rare 
but it’s happened) and in the vast majority of cases, Registrars will only 
implement a lock based on a request by the Provider.  I realize that is the 
wording of the charter question, but I wonder if we can ask it differently or 
add a sub-part?  I think we want to know what information from the Provider 
would make a Registrar’s life easier.  Or maybe we *do* want to ask if 
Complainants should be submitting something specially to the Registrar (in 
addition to the complaint, which  I believe at least NAF and WIPO require)?  I 
suspect Registrars do not want to hear from complainants, but I think we want 
to know what the Registrar DOES want.

I hope I’m making myself clear.  Or maybe the Registrars on the list can 
clarify that they really do want the complainants to do something.

Kristine


Kristine Fordahl Dorrain



Director of Internet and IP Services







National Arbitration Forum (FORUM)

Direct  952. 516. 6456

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Email  kdorrain@xxxxxxxxxxxx<mailto:kdorrain@xxxxxxxxxxxx>

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From: owner-gnso-lockpdp-wg@xxxxxxxxx<mailto:owner-gnso-lockpdp-wg@xxxxxxxxx> 
[mailto:owner-gnso-lockpdp-wg@xxxxxxxxx] On Behalf Of Marika Konings
Sent: Thursday, July 19, 2012 1:14 PM
To: Gnso-lockpdp-wg@xxxxxxxxx<mailto:Gnso-lockpdp-wg@xxxxxxxxx>
Subject: [gnso-lockpdp-wg] For your review by 25 July 2012

Dear All,

As discussed during today's meeting, please find attached for your review the 
proposed public comment forum text, the request for SG/C input and the email to 
request input from other ICANN SO/ACs. Please send any comments / edits and/or 
questions you may have by Wednesday 25 July at 14.00 UTC at the latest.

Thanks,

Marika




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