RE: [gnso-rap-dt] Registration vs. Use / Scope Issues

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

In response to George:

UDRP Section 2 requires registrants to represent legitimate use of the
domain name at the time of original registration AND at the time of each
renewal --  "By applying to register a domain name, or by asking us to
maintain or renew a domain name registration, you hereby represent and
warrant to us ...".

I do not know how WIPO came to its 'consensus view' which you have quoted.
There are plenty of WIPO and NAF precedents for the notion that bad faith at
time of renewal = bad faith registration.  That is the better view, given
the registrant's warranties required by Section 2, and pure logic.  Why
(indeed HOW) can one judge bad faith solely at the time of registration?  It
can only be judged once there is evidence of it, which necessarily cannot
occur before the domain is used, i.e. after it is registered.

We are wasting tons of time on this semantic adventure, trying to define
when registration begins and ends, when it is very obvious that it simply
continues until it is terminated.  Abuse during that time is an abusive
registration.

Thanks,
Mike

Mike Rodenbaugh
Rodenbaugh Law
548 Market Street
San Francisco, CA  94104
www.rodenbaugh.com



-----Original Message-----
From: owner-gnso-rap-dt@xxxxxxxxx [mailto:owner-gnso-rap-dt@xxxxxxxxx] On
Behalf Of George Kirikos
Sent: Monday, May 11, 2009 10:53 AM
To: gnso-rap-dt@xxxxxxxxx
Subject: [gnso-rap-dt] Registration vs. Use / Scope Issues


Hello,

After listening to the telephone call MP3 recording today, I tend to agree
with Mike O'Connor (and disagree with Mike Rodenbaugh) regarding the scope
issue of what "registration" means. As discussed with the example of the
UDRP, "registration" means something substantially different that use, as
has been determined in thousands of UDRP cases.
For example the WIPO summary of views at:

http://www.wipo.int/amc/en/domains/search/overview/index.html#37

says:

"3.7 Does the renewal of the registration of a domain name amount to a
registration for the purposes of determining whether the domain name was
registered in bad faith?

Consensus view: While the transfer of a domain name to a third party does
amount to a new registration, a mere renewal of a domain name does not
amount to registration for the purposes of determining bad faith.
Registration in bad faith must occur at the time the current registrant took
possession of the domain name."

Note in particular the last sentence, which truly defines registration as an
event that is at a  "point in time" rather than happening for a DURATION of
time.

If we were to expand upon the definition, I agree with Mike O'Connor that
we'd be treading upon dangerous territory. Some items might be in a grey
area, though (e.g. the glue records / nameserver spamming, whereby the
nameservers themselves ARE registered (in a point in time), but not at the
same point in time as the domain name is created, i.e. see my prior post).

So I would say:

a) domain name created (creation date) --- IS a "registration"
b) domain name is transferred to a new registrant (change of
ownership) -- IS a "registration"
c) domain name renewal (no change in ownership) -- NOT a "registration"
d) creation of glue records / nameservers registered in WHOIS database
-- IS a "registration"
e) domain recovered after deletion (i.e. RGP) -- IS a "registration"
f) use of domain name after the creation date -- NOT a "registration"

Sincerely,

George Kirikos
http://www.leap.com/