RE: [gnso-rap-dt] Cybersquatting

["James M. Bladel" <jbladel@xxxxxxxxxxx>]

Martin:

For my part, I'm concerned about this line:

"In addition, there is insufficient up-front protection mechanisms to
prevent registrants from initially registering infringing domains which
are freely monetized from the date of registration, via PPC and other
online advertising methods, thus earning revenue for the registrant..."

In my reading of this, it raises two concepts that were well-worn
through the course of this WG:  Blacklists and Intent.  Trusting my
memory a bit here (always a scary thing), it seemed that we developed a
fragile consensus around the idea that Blacklists were problematic,
fraught with error, and had a chilling effect on registrant rights and
freedom to choose registrars.  We did, however, acknowledge that
registries and registrars need to have the flexibility to address
recidivism when they spot it.

And with respect to determining registrant Intent, this has often come
up in our conversations.  Understanding that lessons and methods learned
in the security services industry gives us pretty strong *indications*
of intent, we acknowledged that this cannot be iron clad 100% of the
time.  And while there is some acceptable rate of false-positives when
using anti-virus or anti-spam software, even one error in domain
registrations can be very costly for the registrar and registrant.  

So, I think we need to be very wary about resurrecting these ideas in to
the report now.  They can be captured in an alternative statement in the
Cybersquatting section (at this point, I think we have 2-3 of those
brewing), but I don't agree that these lines should be in the general
background / overview / recommendations.



Thanks--

J.



-------- Original Message --------
Subject: RE: [gnso-rap-dt] Cybersquatting
From: "Michael Young" <myoung@xxxxxxxxxxxxxxx>
Date: Thu, January 21, 2010 12:44 pm
To: <martinsutton@xxxxxxxx>, <gnso-rap-dt@xxxxxxxxx>

  Hi Martin,
  
  
 I am not sure I understand the value of the following recommendation:
  
 “The RAP WG further recommends the initiation of a Policy Development
Process by requesting an Issues Report to investigate the
appropriateness and effectiveness of how any Rights Protection
Mechanisms that are developed elsewhere in the community (e.g. the new
gTLD program) can be applied to the problem of Cybersquatting in the
current gTLD space.”
  
  
 As an avid follower of the NGTLD process, I would understand the Rights
Protection Mechanism candidates up for consideration would be the
proposed URS and TM Clearinghouse concepts. Given that neither has been
implemented as of yet, and therefore we have no real world experience to
judge their effectiveness, I don’t know that an “Issues Report”
and subsequent PDP is going to reveal or add value in addressing
Cybersquatting.  I think a more effective recommendation would be that,
after a suitable period of active use (at least 2 years) of the URS
and/or TM Clearinghouse, an Analysis report of their effectiveness in
reducing Cybersquatting should be conducted.
  
 I think first examining whether the URS or TM Clearinghouse is
effective following their implementation in the NGLTDs is a responsible
stepped approach.  While they sound like valid ideas today, we could
find in practice they do not turn out to be the best tools to address
concerns about Cybersquatting, on the other hand if they are huge
successes, then we can certainly consider a PDP (following an Analysis
report showing that success) at that time.   
  
  
 Best Regards,
  
 Michael Young
  
 Vice-President,
 Product Development
 Afilias
 O: +14166734109
 C: +16472891220
  
  From: martinsutton@xxxxxxxx [mailto:martinsutton@xxxxxxxx] 
 Sent: January-19-10 10:08 AM
 To: gnso-rap-dt@xxxxxxxxx
 Subject: Re: [gnso-rap-dt] Cybersquatting
 
 
 
 Dear all, 
 
 Cybersquatting 
 
 After considering everyone's feedback including some postings last
night, I propose to add the following paragraph to the existing
background information, followed by the recommendation below.  I've got
so many versions of the main document I would prefer your comments back
before sending through a redlined version, to avoid any further (major)
markups - so let me know what you think and I'll then send it through:- 
 
 Background (additional para) 
 
 The RAP WG recognises that the UDRP is a useful mechanism to counter
some elements of Cybersquatting but the scale of Cybersquatting is
overwhelming and the drain on cost and resources for brand-owners to
respond in all instances by using only the UDRP as a remedy is
prohibitive.  In addition, there is insufficient up-front protection
mechanisms to prevent registrants from initially registering infringing
domains which are freely monetized from the date of registration, via
PPC and other online advertising methods, thus earning revenue for the
registrant.  They can then simply wait until a UDRP action is commenced
before they give up the domain, without penalty.  The burden therefore
rests with the trademark owner to monitor, investigate and pursue
litigation in order to provide protection to Internet users. This burden
often includes the registration and ongoing management of large domain
name portfolios, consisting mainly of unwanted domains that benefit only
the Registry, Registrar and ICANN parties.  This approach is already a
major concern for trademark owners, in terms of cost and resources, with
the existing level of gTLDs and ccTLDs, let alone the anticipated growth
of new gTLDs and IDNs.
 
 RECOMMENDATION: 
 
 The RAPWG recommends the initiation of a Policy Development Process by
requesting an issues report to investigate the current state of the
UDRP. This effort should consider: 
  How the UDRP has addressed the problem of cybersquatting to date, and
where the UDRP may be insufficient to curb cybersquatting  Whether the
definition of cybersquatting inherent within the existing UDRP language
needs to be reviewed or updated;  

 
 The RAP WG further recommends the initiation of a Policy Development
Process by requesting an Issues Report to investigate the
appropriateness and effectiveness of how any Rights Protection
Mechanisms that are developed elsewhere in the community (e.g. the new
gTLD program) can be applied to the problem of Cybersquatting in the
current gTLD space. 
 
 Martin C SUTTON 
 Group Risk 
 Manager, Group Fraud Risk and Intelligence | HSBC HOLDINGS PLC HGHQ
 Group Security & Fraud Risk
 8 Canada Square,Canary Wharf,London,E14 5HQ,United Kingdom 
 ________________________________________________________________
 
 Phone.     +44 (0)20 7991 8074 / 7991 8074 
 Mobile.     +44 (0) 7774556680 
 Email.       martinsutton@xxxxxxxx 
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