RE: [gnso-res-sga] FW: [gnso-acc-sgb] Impact on UDRP

[Christopher Gibson <cgibson@xxxxxxxxxxx>]

Steve,

Here's a  further comment on your question - is
the remaining publicly accessible information
about the registrant (name, province, country)
enough for a UDRP complainant to investigate and
prove that the registrant has no rights or
legitimate interest in a domain name? Put another
way, would an impending (or actual) UDRP complaint
be a circumstance in which the OPOC should not
only "relay" but also "reveal" full contact data?

1. Substantive Merits:  The filing of a formal
UDRP complaint should trigger the "reveal" step
for access to WHOIS data.  Concerning the merits
of a UDRP case, the claimant needs to know as much
as possible about the registrant in order to
determine and prove whether the registration
and/or use is in bad faith. The more difficult
question is whether the reveal-step should come
before the actual filing of a complaint.  If this
information is only revealed to a complainant
after the complaint is filed, there will likely be
a number of UDRP cases that could have been
avoided if the complete WHOIS data had been
available prior to filing.  The following details
included in a WHOIS record can provide important
information relevant to determining the merits of
a UDRP case:
  *  registrant name  - is it the same or similar
    to the domain name;
  * address/email - provides a contact point for
    sending communucations, even before a UDRP
    case is filed.  Indicates where in the world
    the registrant is located.  Also, permits
    inquiry into question whether the address in
    the WHOIS is real or fictitious;
  * date created - in many cases it is important
    to determine exactly when the domain name was
    registered;
  * administrative or technical contacts - these
    details can be important to determine whether
    they provide additional information (e.g., an
    alternate address) for the registrant or
    information about third-parties which may be
    connected/affiliated with the registrant; and
  * registrar.
2.  Communications: The WHOIS data is relied on
for purposes of communications and giving proper
notice of a UDRP case.  The UDRP Rules provide in
paragraph 2(a) that: "When forwarding a complaint
to the Respondent, it shall be the Provider's
responsibility to employ reasonably available
means calculated to achieve actual notice to
Respondent." The following measures discharge this
responsibility:  "(i) sending the complaint to all
postal-mail and facsimile addresses shown in the
domain name's registration data in Registrar's
Whois database for the registered domain-name
holder...,  and (ii) sending the complaint in
electronic form ... by e-mail to: (A) the e-mail
addresses for those technical, administrative, and
billing contacts....  Further, paragraph 4
provides that the date of commencement of a UDRP
case is the date on which the Provider completes
its responsibilities under Paragraph 2(a) in
forwarding the Complaint to the Respondent.

On further consideration, the UDRP Rules may need
to be amended if WHOIS data is not available prior
to filing a UDRP complaint.  For example, the
complainant may have access to WHOIS information
that only becomes available after filing the
formal complaint.  Under these circumstances, the
complainant would then probably want to submit an
additional filing.  This makes the UDRP procedure
more costly, lengthy and less efficient.

Chris Gibson

>-----Original Message-----
>From: owner-gnso-res-sga@xxxxxxxxx
[mailto:owner-gnso-res-sga@xxxxxxxxx] On
>Behalf Of Scoville, Adam
>Sent: Thursday, May 17, 2007 7:24 PM
>To: gnso-res-sga@xxxxxxxxx
>Subject: RE: [gnso-res-sga] FW: [gnso-acc-sgb]
Impact on UDRP
>
>On the need to be able to prove the case, yes, I
think this would
>logically have to be a "reveal" event. After all,
showing the OPoC in
>Whois is meant to provide the registrant privacy,
not shield illegality.
>
>
>But luckily the standard for when there is a
possible/impending UDRP
>case is pretty easy - it's basically the UDRP
prong of whether the
>domain is, on its face, "identical or confusingly
similar" to the
>trademark (without regard to the "legitimate
interest" or "bad faith"
>prongs, which are the ones that the mark owner is
unable fully to
>investigate without the Whois information).
>
>- Adam
>
>
>-----Original Message-----
>From: owner-gnso-res-sga@xxxxxxxxx
[mailto:owner-gnso-res-sga@xxxxxxxxx]
>On Behalf Of Metalitz, Steven
>Sent: Thursday, May 17, 2007 3:17 PM
>To: Christopher Gibson; gnso-res-sga@xxxxxxxxx
>Subject: RE: [gnso-res-sga] FW: [gnso-acc-sgb]
Impact on UDRP
>
>I can see that that would address Doug's point
(2), but what about point
>(1) -- is the remaining publicly accessible
information about the
>registrant (name, province, country) enough for a
complainant to
>investigate and prove that the registrant has no
rights or legitimate
>interest in a domain name? Put another way, would
an impending (or
>actual) UDRP complaint be a circumstance in which
the OPOC should not
>only "relay" but also "reveal" full contact data?
>
>Steve
>
>-----Original Message-----
>From: Christopher Gibson
[mailto:cgibson@xxxxxxxxxxx]
>Sent: Thursday, May 17, 2007 5:02 PM
>To: Metalitz, Steven; gnso-res-sga@xxxxxxxxx
>Subject: RE: [gnso-res-sga] FW: [gnso-acc-sgb]
Impact on UDRP
>
>Steve,
>
>Thanks for cross-posting the comments below. I
already had a quick
>review of the UDRP (and mentioned in my working
proposal). I don't
>think the UDRP needs to be amended so long as
there is something in
>ICANN's principles for OPOCs (e.g., in the
accreditation) which
>specifies that notice to the OPOC's published
contact details satisfies
>the responsibilities for notice under the UDRP. I
can draft some
>specific language on this if it would be helpful.
>
>Chris
>
>-----Original Message-----
>From: owner-gnso-res-sga@xxxxxxxxx
[mailto:owner-gnso-res-sga@xxxxxxxxx]
>On
>Behalf Of Metalitz, Steven
>Sent: Thursday, May 17, 2007 4:50 PM
>To: gnso-res-sga@xxxxxxxxx
>Subject: [gnso-res-sga] FW: [gnso-acc-sgb] Impact
on UDRP
>
> Cross-posting to the subgroup A list on an issue
that appears to be
>within our bailiwick.......
>
>Steve Metalitz
>
>-----Original Message-----
>From: owner-gnso-acc-sgb@xxxxxxxxx
[mailto:owner-gnso-acc-sgb@xxxxxxxxx]
>On Behalf Of Dan Krimm
>Sent: Thursday, May 17, 2007 4:40 PM
>To: gnso-acc-sgb@xxxxxxxxx
>Subject: RE: [gnso-acc-sgb] Impact on UDRP
>
>From where I sit, it seems that it might only
entail minor changes to
>UDRP to comply, if at all.
>
>Perhaps this WG (if Subgroup A arrives at such a
recommendation) could
>instantiate an explicit and absolute (rather than
merely informally
>implied) responsibility of the OPoC to
communicate UDRP complaints to
>the registrant (with explicit acknowledgement of
such action provided to
>the Complainant, and failure possibly resulting
in blocking the domain),
>and thus the OPoC would be considered a reliable
conduit for such
>complaints under UDRP. The OPoC could even be
given authority to act
>directly on UDRP complaints in some cases, if
delegated by the
>registrant.
>
>That may not even require amending UDRP
explicitly. But if so, it seems
>like a minor amendment. It's not like UDRP has to
be etched in stone in
>every absolute detail. This WG can note any
impacts on UDRP arising
>from its Whois recommendations, and I presume
GNSO (upon adopting the
>results of the WG) can offer suggestions to the
Board for how to
>accommodate its recommendations for Whois/OPoC in
UDRP.
>
>Doesn't seem like a big deal. Isn't this the
whole point of the OPoC,
>to be the official point of contact for all
external communications with
>regard to DNS operations?
>
>Dan
>
>PS -- Apologies to SGA for stepping on their
domain from SGB... ;-)
>
>
>
>At 3:35 PM -0400 5/17/07, Doug Isenberg wrote:
>>I don't believe the UDRP has been amended since
it was approved by
>ICANN in 1999 - so, the process for amending it
is not clear (at least
>not to me - though I'd be happy to hear from
others on this point).
>But, it does seem clear that either (1) the UDRP
would need to be
>amended to accommodate some of the Whois
proposals being discussed or
>(2) the Whois proposals being discussed need to
be modified to
>accommodate the UDRP as it has existed since
1999.
>>
>>Doug Isenberg
>><http://www.gigalawfirm.com/>www.GigaLawFirm.com
>>
>>
>
>
>