Re: [gnso-pednr-dt] Ownership of domain names: some hard questions

[Alan Greenberg <alan.greenberg@xxxxxxxxx>]

At 08/12/2009 02:12 PM, Sivasubramanian Muthusamy wrote:
> Hello
>
> A Business Domain name is the name of the business, brand name or 
> some imaginative phrase which by use becomes familiar among 
> customers and associates, so the business domain name is an asset 
> for that business entity that opted to register the domain name. A 
> personal domain name is often the name of the person who registers 
> the domain name or an imaginative string which the Registrant comes up with.
> Except for machine generated auto-suggestions, the Registrar does 
> not play any role in the selection of domain names, whether it is 
> registered by a commercial establishment or by an individual. So, in 
> a sense, from an intellectual property point of view, domain names 
> are intellectual properties of the registrants, which are also 
> assets in a business context.
> What gives a Registrar the right to consider an expired domain name 
> as part of his silage?
If a registrar has the right to use that domain name after 
expiration, it is because the registrant gave them that right in the 
registration agreement. Perhaps there are not many registrars that do 
not insist on that right (don't really know) but for better or worse, 
unless is prohibited or otherwise stops happening, it is legal.

> A Registrar has nothing to do with the domain name, except provide 
> the service of registration for a fee. A registrant opts to register 
> a domain name from a certain Registrar instead of another due to 
> reasons of convenience or cost or no reasons, and by choosing a 
> certain Registrar, the Registrant does not concede the Registrar the 
> right and rank of the second owner of the domain name, which 
> automatically gets elevated to the rank of the first and absolute 
> owner of the domain name that the Registrant has failed to renew 
> within a tight time frame.
Technically, although we often use terms such as "buy" a domain name 
or the "owner" of one, it is not property that is owned.
Again, the rules of engagement are covered by the contracts. We are a 
society that often give much credit for "entrepreneurship". Perhaps 
this is an example. Some people say that the secondary market for 
domain names is now larger than the primary market.

> I am concerned about the following points noted in the Registrar 
> Survey Preliminary Results dated Nov 24, 
> 2009  <http://bit.ly/pednrrs>http://bit.ly/pednrrs
>    * "Registrars renew the registration on behalf of the registered 
> name holder". How do they assume this function as a right?
I think the wording here is incorrect. They typically renew or allow 
to be renewed the name with the registry subject to the 45 dat A-RGP.
>    * "after expiration 'the registrant has no rights on such 
> registration and ownership ... now passes on to the registrar" - 
> Why? The domain name ought to go back to the Registry / ICANN.
Contracts now allow it.

>    * "renewal and recovery processes differ among registrars. It is 
> not a uniform practice to allow an auto-renewal grace period 
> followed by a redemption grace period" - A uniform practice is 
> required to be laid down.
Perhaps that will be a result of this PDP. It is not the case now.

>    * "recovery is not an obligation but at the sole discretion of 
> the registrar" - Recovery ought to be defined as the right of the Registrant
Same answer.

>    * "Notices are sent by email, some registrars consider the 
> practice of notification as non-binding" - When it is considered 
> non-binding - in the absence of notices, more Registrants fail to 
> renew their domain names.
Sending no notices is a violation of the RAA.

>    * "whois contact information is changed to that of the Registrar"  Why?
Typically because they are allowed to by the contract. WHY they do it 
is a different question, and there are both pro and con reasons for 
allowingthat practice.
>    * "additional fee during the auto-renewal and the redemption 
> grace period" - Is there any significant additional cost?
Varies. Often not specified.

>    * "right of registrar to point the domain to a registrar 
> designated page which in most cases happen to a ppc page" [ 
> reworded, but still shown within quotes] This is opportunistic and 
> can't be considered as implied in the contract between the 
> Registrant and Registrar
Typically it is not "implied" in the contract. It is explicitly 
stated. As above, it is an interesting judgement call when 
entrepreneurial becomes opportunistic.
>    * "right of registrar to auction the expired domain names" - 
> What accords them the right?
Contract.

>    * convenient terms in registration agreements - ICANN needs to 
> look into the clauses of a typical Registrar's agreement with the 
> Registrant ( and may have to suggest a minimal template ?)
That is what the PDP is for, within the limits under which ICANN can 
legislate things without inhibiting competition of moving outside its scope.
Alan

> Sivasubramanian Muthusamy
>
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