RE: [gnso-rap-dt] "slamming" and law enforcement

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

Team:

Just to reiterate my comment on today's call, as I'm not confident it
made any sense at the time.

When examining this topic, we have to test three issues:

1.  Does the "slam" involve g/ccTLDs?  (Pass = gTLD)
2.  Does the "slam" involve registrars, or their resellers?  (Pass =
Yes)
3.  Does the "slam" involve the actual registration of the name, or just
a threat to do so? (Pass = Actual Registration).

In order to fall within purview of ICANN, all three tests must pass:
ICANN only manages gTLD registrations, and cannot develop policies for
non-contracted parties.

Assuming for a minutes that all three questions pass, this raises a
fourth question:

4.  Does the string represent a trademark or brand?

If the answer to this question is yes, then the appropriate course of
action is the UDRP.  If, however, it does not, then any policy work
restricting the registration of identical strings is misguided, since it
would presume that the registrant of "example.com" has some prevailing
rights to "example" in other gTLDs.  And in the existing
first-come/first-served environment, this simply isnt the case.

In any event, I'd like to know more about this problem, and what the
most appropriate means to address it may be.  Further research (issues
report?) may be in order, but need to acknowledge ICANN's already
ambitious workload.  Any other avenues, such as reaching out to Law
Enforcement or the ccNSO, would also be worth exploring.

Thanks--

J.


-------- Original Message --------
Subject: Re: [gnso-rap-dt] "slamming" and law enforcement
From: martinsutton@xxxxxxxx
Date: Mon, April 19, 2010 4:00 pm
To: "Greg Aaron" <gaaron@xxxxxxxxxxxx>, "gnso-rap-dt"
<gnso-rap-dt@xxxxxxxxx>

 I can't help thinking we are breaking into new ground but that we
should expect this given the short life of the Internet. 

With regards to any meaningful law enforcement, we should not anticipate
this in any jurisdiction I am aware of!  This is a minor, if not
completely ignored, event due to the low value of cost/risk per
individual incident. Nice to think that collectively there could be a
case on a collective basis but who, how, why comes into question. 

Agreed, the practices we refer to here are pre-registration but there is
little or no effort emphasized for the prevention of these tactics. Only
recourse if the rights holder chooses to pursue. Legislation is not
consistent and cross jurisdiction creates an immediate obstacle.

I would like to emphasize the fact that renewal notices and 'slamming'
alike have never been treated as a problem because there is no interest
to identify the issues by contracted parties or to be dealt with in a
consistent and forceful manner globally.  We need facts to show the
scale and scope if the problem, including players from the ICANN
accredited community. Moreso, Mikey raised some pertinent points with
regards to the chain of contracts which should be explored further. 

So, I would be happy for the RAPWG to put the stake in the ground, along
the lines of more research required. 

Kind regards,

Martin
 
Martin Sutton
Manager, Group Fraud Risk and Intelligence
Ph:  ++44 (0)20 7991 8074
Mob:  ++44 (0)777 4556680
Sent from my BlackBerry

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*********************************

  From: "Greg Aaron" [gaaron@xxxxxxxxxxxx]
  Sent: 19/04/2010 12:54 AST
  To: <gnso-rap-dt@xxxxxxxxx>
  Subject: [gnso-rap-dt] "slamming" and law enforcement


  There has been a lot of action against entities doing fake renewal
notices and related deceptive practices.  This is not a new issue, and
has been handled by law enforcement and court cases over the years. 
  
 I’m thinking that “pre-registration” solicitations are outside of
scope for ICANN do deal with – it’s an issue of trade practices and
sometimes fraud, and a name has not yet been registered.
  
 A few cases are….
  
 In 2003, the Domain Registry of America were ordered by the Federal
Trade Commission not to make misrepresentations after telling consumers
that their domain registrations were expiring, leading many consumers to
switch their domain name registrar.
  
 In 2004, the UK Advertising Watchdog Authority (ASA) slammed Domain
Registry of Europe over similar mailings.
  
 “As early as 2001, the Canadian Competition Bureau issued a warning
to Canadian businesses to take caution before paying what appeared to be
invoices.. And last year, a federal judge in New York ordered Domain
Registry of America to stop telling Register.com customers that the two
companies were affiliated in an attempt to get their business.” 
  [
http://www.theregister.co.uk/2003/08/06/legal_action_threatened_against_domain/
]
  
 New Zealand Domain Registration Ltd,  was found guilty by Australia's
Federal court in 2004 of false and misleading conduct under the
country's Trade Practices Act.  (A$1.3 million damages awarded against
them, after the Federal Court found the parties responsible had copied
UK domain registrar Nominet's database of customers. )
 http://pcworld.co.nz/pcworld/pcw.nsf/feature/0B56ACE3E2A579C7CC2571C30007FDE7

  
  
  
 **********************************
 Greg Aaron
 Director, Key Account Management and Domain Security
 Afilias
 vox: +1.215.706.5700
 fax: 1.215.706.5701
 gaaron@xxxxxxxxxxxx 
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