Re: [gnso-rap-dt] cybersquatting edit

[Frederick Felman <ffelman@xxxxxxxxxxxxxxx>]

Greg, 

If we simply need to make it consistent then lets stick with "or" rather
than "and".  That was my understanding of what we agreed upon and voted on
and is stated plainly.

Moreover, there's precedence for use of "or" and it makes sense:

1) many ccTLDs in multiple ICANN regions use "or" in their definition of
Cybersquatting for the purpose of UDRP including .AU and .ES

2) the basis for the GNSO policy changes to reduce kiting was a case that
demonstrated registration abuse involving Cybersquatting.  One look at the
exhibits link below shows a plainly an example of Cybersquatting as a pure
registration abuse in an actual case.

(Dell & Alienware v. Belgian Domains et al,
http://www.domainnamenews.com/images/dell_doc1.pdf and
http://www.domainnamenews.com/images/dell_doc2.pdf see page 22 for example
of registration abuse where registration = abuse, GNSO Kiting Report
gnso.icann.org/drafts/draft-final-report-domain-tasting-08feb08.pdf )

Have a great weekend, I look forward to what might be a fun and spirited
discussion! 

- Fred

On 5/7/10 11:07 AM, "Greg Aaron" <gaaron@xxxxxxxxxxxx> wrote:

> Dear Fred:
> 
> The definition in the paper currently says cybersquatting is for profit,
> period.  But "There was consensus in the RAPWG that provisions 4(a) and 4(b)
> of the UDRP are a sound definition of Cybersquatting UDRP."  That consensus
> was also agreed to by all, after a lot of work.
> 
> The UDRP mentions profit but also other motives and measures of bad faith,
> such as interference with business.   So we have a conflict between the two
> statements, I believe unintentional and overlooked at the time.  We are
> trying to reconcile them now.
> 
> For example, if one has registered "the domain name in order to prevent the
> owner of the trademark or service mark from reflecting the mark in a
> corresponding domain name," (as per the UDRP language) isn't that
> cybersquatting?
> 
> All best,
> --Greg
> 
> 
> 
> 
> 
> -----Original Message-----
> From: Frederick Felman [mailto:ffelman@xxxxxxxxxxxxxxx]
> Sent: Friday, May 07, 2010 1:52 PM
> To: Greg Aaron; 'Wendy Seltzer'; 'Rod Rasmussen'
> Cc: RAP-WG
> Subject: Re: [gnso-rap-dt] cybersquatting edit
> Importance: High
> 
> The edit is inaccurate.  It does not reflect the decision by the group, the
> report as submitted the text of our definition of Cybersquatting is cited in
> the report on page 25 in Section 5.1.1 as follows:
> 
> "Cybersquatting is the deliberate and bad-faith registration or use of a
> name that is a registered brand or mark of an unrelated entity, for the
> purpose of profiting (typically, though not exclusively, through
> pay-per-click advertisements). Cybersquatting is recognized as an abuse in
> the ICANN community, and the UDRP was created to address this abuse. There
> was consensus in the RAPWG that provisions 4(a) and 4(b) of the UDRP are a
> sound definition of cybersquatting.11"
>  
> I disagree with the edit as proposed
> 
> On 5/7/10 6:15 AM, "Greg Aaron" <gaaron@xxxxxxxxxxxx> wrote:
> 
>> 
>> Wendy's edit is accurate.
>> Regarding Rod: if we are referencing the definition in the UDRP (and the
>> group had consensus agreement that it was the good definition of
>> cybersquatting), why don't we just reference instead of making
>> characterizations about motive?  Just seems cleaner not to.
>> 
>> All best,
>> --Greg
>> 
>> 
>> 
>> -----Original Message-----
>> From: Wendy Seltzer [mailto:wendy@xxxxxxxxxxx]
>> Sent: Thursday, May 06, 2010 8:14 PM
>> To: Rod Rasmussen
>> Cc: Greg Aaron; gnso-rap-dt@xxxxxxxxx
>> Subject: Re: [gnso-rap-dt] cybersquatting edit
>> 
>> One critical edit: "cybersquatting is the deliberate and bad-faith
>> registration *AND* use of a name...," as the UDRP defines it.
>> 
>> --Wendy
>> 
>> Rod Rasmussen wrote:
>>> How about this sentence reshuffling alternative that keeps the primary
>> methodology mentioned (which people are familiar with) and should take
> care
>> of Bruce's concern:
>>> 
>>> Cybersquatting is the deliberate and bad-faith registration or use of a
>> name that is a registered brand or mark of an unrelated entity, typically,
>> though not exclusively, for the purpose of profiting through pay-per-click
>> advertisements...
>>> 
>>> Rod
>>> 
>>> On May 6, 2010, at 12:50 PM, Greg Aaron wrote:
>>> 
>>>> Dear WG:
>>>>  
>>>> For the definition of cybersquatting in 5.1.1: Our report says:
>> "Cybersquatting is the deliberate and bad-faith registration or use of a
>> name that is a registered brand or mark of an unrelated entity, for the
>> purpose of profiting (typically, though not exclusively, through
>> pay-per-click advertisements).... There was consensus in the RAPWG that
>> provisions 4(a) and 4(b) of the UDRP are a sound definition of
>> Cybersquatting."
>>>>  
>>>> In the Nairobi comment session, Bruce Tonkin noted that the above is
>> internally inconsistent.  Profit is not always a motive for all
>> cybersquatters.  Sections 4(a) and 4(b) of the UDRP mentions other proofs
> of
>> bad faith (such as "disrupting the business of a competitor.")   And its
>> mentions profiting by getting people to come to the site.
>>>>  
>>>> So, I propose we just delete the phrase "for the purpose of profiting
>> (typically, though not exclusively, through pay-per-click
> advertisements)".
>> I think that would make the statement accurate, and respects the
>> conversations we had in the WG.  Are there any objections?
>>>>  
>>>> All best,
>>>> --Greg
>>>>  
>>>>  
>>>> **********************************
>>>> 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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>>> 
>>> 
>> 
>