[gnso-lockpdp-wg] RE: UDRP Domain Name Lock Survey - Follow up questions

["Roache-Turner, David" <david.roacheturner@xxxxxxxx>]

Just an additional point (as we were just discussing in today’s session) to 
note concerning questions 12 (and to some extent 13) below - although observed 
instances of these situations are statistically infrequent at WIPO, the 
complexities which can occur in those relatively rare cases in which they are 
experienced can be very considerable.

A registrant attempt to disrupt of frustrate a pending UDRP proceeding through 
transfer to another registrant is sometimes referred to by UDRP Panels as 
cyber-flight or cyber-flying.    The rationale for this in connection with 
paragraph 8(a) has sometimes been explained by Panels as follows:

“To interpret section 8(a) of the Policy in such a way as to permit transfers 
of registration after notice of the complaint to the respondent but before 
official commencement of the proceedings by way of notification from the 
provider would not do justice to complainants who have initiated complaints in 
accordance with the Policy and the Rules. Moreover such an interpretation would 
appear to permit, if not encourage the phenomenon cyberflying, where a 
registrant of a domain name, when named as the respondent in a domain name 
dispute case, systematically transfers the domain name to a different 
registrant to disrupt the proceeding.”

See further 
http://www.kipo.ke.wipo.net/amc/en/domains/decisions/html/2000/d2000-0683.html.

Some other examples of published cases over the years in which such problems 
have been found by Panel’s to have occurred, have included, for instance:

http://www.wipo.int/amc/en/domains/decisions/html/2004/d2004-0830.html

http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0696.html

http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0917.html

http://www.wipo.int/amc/en/domains/decisions/word/2007/d2007-1431.doc

http://www.wipo.int/amc/en/domains/decisions/text/2010/d2010-0387.html

Best,
David
________________________________
From: Roache-Turner, David
Sent: mercredi, 1. août 2012 19:06
To: Marika Konings; Beckham, Brian; Dorrain, Kristine; Dennis Cai; Tereza 
Bartošková; Gray, Ty
Subject: RE: UDRP Domain Name Lock Survey - Follow up questions

Thanks Marika.  Please find below the WIPO Center’s new (supplementary) 
response to each of the below questions providing a further breakdown based on 
our analysis of sampled WIPO UDRP cases.

With best regards,
David

________________________________
From: Marika Konings [mailto:marika.konings@xxxxxxxxx]
Sent: mardi, 24. juillet 2012 14:48
To: Beckham, Brian; Roache-Turner, David; Dorrain, Kristine; Dennis Cai; Tereza 
Bartošková
Subject: UDRP Domain Name Lock Survey - Follow up questions

Thank you very much for participating in the UDRP Domain Name Lock Survey. 
Following review of the responses received from all the UDRP providers, the WG 
would be interested to know whether it would be possible for you to provide a 
further breakdown in relation to the specific questions listed below so that 
the WG is able to determine whether the real number is closer to 0% than 25%, 
or to 100% than 75%. If possible, please complete the 'new response' for each 
of the questions and send these back to me.

If you are interested to review the responses to the survey, please see 
https://community.icann.org/x/l6-bAQ.

With best regards,

Marika
4.  In approximately what percentage of UDRP proceedings that you handle do 
registrars lock the domain name(s) at issue taken on a representative sample of 
UDRP disputes that you have had experience with?
Current response: More than 75%: 4
New response: More than 75%, please specify: ___Lock was confirmed by the 
registrar (in response to receipt of WIPO verification request) in 
approximately 99% of sampled WIPO cases.
5. In approximately what percentage of UDRP proceedings that you handle do 
registrars fail to confirm lock of the domain name(s) at issue for purposes of 
the UDRP dispute within five(5) days of your sending a provider verification 
request to the concerned registrar, taken on a representative sample of UDRP 
disputes that you have had experience with?
Current response: Less than 25%: 3
New response: Less than 25%, please specify: ___Registrar failed to confirm 
lock within five (5) days (in response to WIPO verification request) in approx 
6% of sampled WIPO cases.
8.  In approximately what percentage of UDRP proceedings that you have 
administered are you aware of the registrar having confirmed lock of a domain 
name in reply to a request for registrar verification from you, but in which 
there were nonetheless subsequent material changes to the registrant data which 
impacted administration of the UDRP dispute?
Current response: Less than 25%: 3 & Free-text 1: Less than 5%
New response: Less than 25%, please specify: ___In approx 2% of sampled WIPO 
cases, where the registrar confirmed lock in reply to the WIPO verification 
request, there were nevertheless indicia of subsequent material changes which 
impacted administration of the proceeding.
12.  In approximately what percentage of UDRP proceedings that you have 
administered are you aware of the registrar’s confirmed domain name lock 
failing to prevent an apparently prohibited (e.g. under UDRP paragraph 8(b)) 
transfer to another registrar during pendency of a UDRP proceeding.
Current response: Less than 25%: 2 & Free-text 1: Less than 5% & Free-text 2: 
This only happened in cases where the registrar provided verification but did 
not expressly confirm locking
New response: Less than 25%, please specify: ___ No observed instances in the 
sampled WIPO cases.
13.  In what percentage of UDRP proceedings that you have administered are you 
aware of the registrar’s confirmed domain name lock having failed to prevent an 
apparently prohibited (e.g. under UDRP paragraph 8(a)) transfer of a domain 
name registration to another registrant.
Current response: Less than 25%: 2 & Free-text 1: Less than 5% & Free-text 1: 
This only happened in cases where the registrar provided verification but did 
not expressly confirm locking
New response: Less than 25%, please specify: ___ Less than 1% of the sampled 
WIPO cases.
14.  In what percentage of UDRP proceedings that you have administered are you 
aware of the registrar’s confirmed domain name lock having failed to prevent 
modification of any materially relevant WHOIS data, e.g. registrant contact 
information?
Current responses: Less than 25%: 3 - Free-text 1: Requested data not available
New response: Less than 25%, please specify: ___ In approx 2% of sampled WIPO 
cases, where the registrar confirmed lock in reply to the WIPO verification 
request, there were nevertheless indicia of subsequent modification to WHOIS 
data such as contact information.
16. In approximately what percentage of UDRP proceedings that you have 
administered are you aware of a registrar's confirmed domain name lock pursuant 
to a UDRP proceeding having apparently prevented expiration (e.g. registrar 
confirms no further steps necessary to keep domain name “active” and subject to 
UDRP proceedings) of a domain name that passes its expiration date (without 
renewal) while a UDRP proceeding is pending (or in the 10/15 day "wait period" 
thereafter) (e.g. registrar does not appear to require payment by either UDRP 
party pursuant to the Expired Domain Deletion Policy (EDDP) to keep the 
disputed domain name “active” and subject to the UDRP proceeding)?
Current response: Less than 25%: 3 & Free-text 1: Requested data not available
New response: Less than 25%, please specify: ___ Of the sampled WIPO cases, 
approximately 16% involved an expiration issue, and of this 16% of administered 
cases, in approximately 75% these, the registrar indicated that the lock itself 
would be sufficient to keep the disputed domain name active without payment 
pending resolution of the proceedings (many also indicated that the domain name 
would also expire immediately on conclusion of the UDRP proceeding without 
appropriate payment of the applicable fee by the successful party).  The 
somewhat qualified answer to this question, therefore, based on the sampled 
WIPO cases is approximately 12%.
18. If a UDRP proceeding is decided in favor of the registrant, in what 
percentage of cases are you aware of where the registrar would not have 
unlocked the domain name once the 15 day ‘wait’ period has expired?
Current response: Less than 25%: 3 & Free-text 1: Requested data not available
New response: Less than 25%, please specify: ___ In terms of proceedings 
decided in favor of the registrant, no observed instances of the registrar 
failing to unlock the disputed domain name in the sampled WIPO cases.


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