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

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

There are plenty of good models in the BC and the broader internet
community, and indeed in the existing registrar community.  The problem is
lack of consistency and clarity of terms in that community.  Registrants in
India should have the same basic protections as registrants in the US, and
the same ability to clearly understand the basic terms as presented in their
language.  Unfortunately, there remain some fairly bad actors with
intentionally obtuse or nonexistent terms, and many with unclear terms.
There is also a fairly clear intent by most registrars to acquire their
customers' domains upon expiration, which is not something that is clearly
understood outside of ICANN circles, and should be prominently disclosed to
registrants at the time they register.

Mike Rodenbaugh
RODENBAUGH LAW
548 Market Street
San Francisco, CA  94104
(415) 738-8087
http://rodenbaugh.com



-----Original Message-----
From: Jeff Eckhaus [mailto:eckhaus@xxxxxxxxxxxxxxx] 
Sent: Thursday, December 10, 2009 10:25 AM
To: 'icann@xxxxxxxxxxxxxx'; 'Sivasubramanian Muthusamy'; 'Alan Greenberg'
Cc: gnso-pednr-dt@xxxxxxxxx
Subject: [Bulk] RE: [Bulk] Re: [gnso-pednr-dt] Ownership of domain names:
some hard questions

Mike,

Since you assume the BC will be behind this, could we use some of the BC
members Agreements with their customers as examples of the language that is
"clear and understandable"? 
I am unsure what this term means so I assume that the members of the BC all
use this "clear and understandable" language in their user agreements and
can help the Registrars along in this process .

Thanks


Jeff



-----Original Message-----
From: owner-gnso-pednr-dt@xxxxxxxxx [mailto:owner-gnso-pednr-dt@xxxxxxxxx]
On Behalf Of Mike Rodenbaugh
Sent: Thursday, December 10, 2009 10:18 AM
To: 'Sivasubramanian Muthusamy'; 'Alan Greenberg'
Cc: gnso-pednr-dt@xxxxxxxxx
Subject: RE: [Bulk] Re: [gnso-pednr-dt] Ownership of domain names: some hard
questions


Siva wrote:   So this PEDNR wg needs to work on getting ICANN to look into
the clauses of a typical Registrar's agreement with the Registrant, and get
the Registrars warn the Registrants in an understandable language what they
are conceding to the Registrars.


I agree completely, and am certain the BC would have consensus on this
point.

Mike Rodenbaugh
RODENBAUGH LAW
548 Market Street
San Francisco, CA  94104
(415) 738-8087
http://rodenbaugh.com 

-----Original Message-----
From: owner-gnso-pednr-dt@xxxxxxxxx [mailto:owner-gnso-pednr-dt@xxxxxxxxx]
On Behalf Of Sivasubramanian Muthusamy
Sent: Thursday, December 10, 2009 9:47 AM
To: Alan Greenberg
Cc: gnso-pednr-dt@xxxxxxxxx
Subject: [Bulk] Re: [gnso-pednr-dt] Ownership of domain names: some hard
questions


Hello Alan

Thank you for your response. The summary of your response to various
points raised is "It is all there in the contract. The Registrant
signed it"

But how many Registrants really understand what they sign? And if I as
a Registrant tell a Registrar in Chennai that I am not signing the
agreement, would he register a domain for me? Most of these agreements
take advantage of the fact that few users read these agreements.

It is all there in the agreement, but in fine print.. So this PEDNR wg
needs to work on getting ICANN to look into the clauses of a typical
Registrar's agreement with the Registrant, and get the Registrars warn
the Registrants in an understandable language what they are conceding
to the Registrars.

It may be there in the contract, but that still does not make it a
fair practice. Essentially this WG needs to pay attention to the
clauses for which a Registrant's signature is taken.

Sivasubramanian Muthusamy




On Wed, Dec 9, 2009 at 2:40 AM, Alan Greenberg <alan.greenberg@xxxxxxxxx>
wrote:
> 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
>
> "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
>
> Blog: http://isocmadras.blogspot.com
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> LinkedIn: http://is.gd/x8U6
> Twitter: http://is.gd/x8Vz
>
>