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 /s*hown 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 forwardin! g ! ! 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
>>
>>
>
>
>