Re: [gnso-pednr-dt] Compliance and transfer past expiration

[Sivasubramanian Muthusamy <isolatedn@xxxxxxxxx>]

On Wed, May 5, 2010 at 12:03 AM, Alan Greenberg <alan.greenberg@xxxxxxxxx>wrote:

>
>
> Hi Alan,
>>
>> Here is the feedback I have received from Compliance:
>>
>>


> "Contractual Compliance零 position is that there is no compliance issue when
>> the registrant is not able to initiate a domain name transfer
>
>

> because he is no longer listed in the Whois as the registrant due to Whois
>> changes made by a registrar following expiration.
>
>
That is exactly the post-expiry domain name situation, this is exactly the
situation where the Registrant is in a trap, This is the
neither-here-nor-there situation where and when the Registrant is totally
defenseless. To cite the whois changes and throw up your hands isn't right.



> In this situation, the registrar零 acts
>> and/or omissions do not amount to a breach of ICANN policy or the RAA.
>>
>
We need to look beyond this legal situation that looks right on paper but
not quite.


>
>> The situation described appears to be a business matter between the
>> registrar and the registrant, which would be determined by the terms and
>> conditions of the registrar零 auto-renew policy and registration agreement
>> (i.e., the ex-registrant is enforcing his/her rights (if any) under those
>> instruments and ICANN is unlikely to have authority to intervene).
>
>
These terms and conditions of the Registrar is something over which the
Registrant has not had any say or control. While the agreeement between
ICANN and the Registrars or the Registries and the Registrars are legal
documents thorougly examined by both sides by their lawyers, the
registration agreement is nothing more than a routine document in fine print
that the Registrant invariably has to sign to move on to the next stage of
the shopping cart transaction.,

This is exactly the area where the Registrant requires his advocates, be it
at-Large or NCUC to engage professional lawyers to go over the terms of the
registration agreement clause by clause and come up with a generic
Registration agreeemnt with common minimum clauses that are fair on the
Registrant who is in position to negoitate clauses of the 'agreement'
severally.

Sivasubramanian Muthusamy


> My own
>> experiences in dealing IRTP complaints to date suggest many registrants
>> try
>> to initiate transfers before the expiration of their domain name
>> registrations."
>>
>> With best regards,
>>
>> Marika
>>
>
> > At 03/05/2010 04:13 AM, Marika Konings wrote:
>
>> >> Hi Alan,
>> >>
>> >> I think it is looking very good. Let me know if there is anything I can
>> do
>> >> to help.
>> >>
>> >> On the issue of transfer during auto-renew grace period, I'm still
>> going
>> >> back and forth with compliance / legal to get a clear answer, but the
>> >> feedback I have received so far seems to confirm that there is no
>> 'right' /
>> >> contractual obligation that states that a registrant after expiration
>> has
>> >> the right to transfer a domain name registration. Any direct registrant
>> >> "rights" would have to come from either contract or law. If the
>> registration
>> >> has expired then so effectively has the registration agreement, and
>> >> therefore the registrant probably doesn't have the same "rights" any
>> more in
>> >> relation to the registrar. It is worth keeping in mind that transfers
>> are
>> >> initiated by and at the gaining registrar, so the issue is not really
>> about
>> >> the ex-registrant's "right" to request or initiate a transfer, but
>> rather
>> >> what obligations the losing registrar should have to assist a customer
>> who
>> >> effectively is no longer the registrant of the name. I'm trying to get
>> >> feedback from the compliance team on whether many / any complaints are
>> >> received in relation to this type of scenario, or whether it is more a
>> >> scenario that could occur in theory but doesn't really happen in
>> practice.
>> >>
>> >> I'll keep you posted,
>> >>
>> >> Marika
>>
>
>
>