[gnso-pednr-dt] Interesting and Potential Relevant Articles

["Michael D. Palage" <michael@xxxxxxxxxx>]

Hello All:

I just wanted to share two articles that I read this morning that may be of
interest to the group.

This first deals with practices in the post expiration auction market. In
this article the author details some of the practices involving auctions in
which the winner bidder defaults. It appears that only GoDaddy allows the
secondary bidder to prevail, see
http://www.thedomains.com/2009/09/15/the-best-thing-godaddy-auctions-does-is
-also-the-most-frustrating-thing/. Now for all my registrars friends that
are likely to challenge what does this have to do with the narrow scope of
this working group, the article states that the current majority practice is
for the registrar/service provider to hold a second auction. My questions
which I believe are relevant to this Working Group are : 1) in this
secondary auction, does the original registrant have any ability to recover
the name, or is their only option to be highest bidder in the auction and 2)
given that most initial auctions are set to conclude at the end of the
initial auto-renew grace period, what is the legal status of the domain and
what registrant details appear in the Whois during this secondary auction if
conducted post auto-renew?

The second article that I read dealt with potential registrar immunity/safe
harbor under EC Directive 2000/31/EC, see
http://www.domainnews.com/en/domain-registrars-legal-framework-clarified-in-
france.html . Now while this article is not directly related to the work of
this working group, it is related to an issue that I have repeated raised
within the scope of this working group. What is the legal construct in which
a domain name existing during the expiration phase and who are the legal
parties in that legal construct at that time. Now what I find interesting in
this article is the Court's narrow interpretation of a registrar's
immunity/safe harbor.

Specifically, for those registrars that legally assume control of a domain
name post expiration for any period of time, and then use it in commerce as
part of an auction or to generate PPC traffic, it is hard to reconcile these
actions within the narrow safe harbor provided to registrars by this Court
as it does not appear to be a merely technical function in which the
customer (registrant) is solely responsible for using the domain name.

Best regards,

Michael