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RE: [gnso-sti] Transfer of domain name to claimant after successful URS
- To: GNSO STI <gnso-sti@xxxxxxxxx>
- Subject: RE: [gnso-sti] Transfer of domain name to claimant after successful URS
- From: Alan Greenberg <alan.greenberg@xxxxxxxxx>
- Date: Tue, 01 Dec 2009 09:20:42 -0500
Jeff, first I should point out that I am not
fanatic about allowing transfer, but I think it would be a good end-point.
On your specific example (and I understand that
it is just an example), I have several problems.
1. Putting a Rolex watch (which presumably in
your example, he does not have the rights to
sell) on the website would not be grounds for a
URS. His website would need to be named
"get-you-r-rolex-here.com", or some such, since
it is the domain name possible infringement that
triggers the entire URS process. I think that
this take it out of the realm of innocence.
2. If, for whatever reason, the URS is successful
and not appealed successfully, according to what
we have specified so far, there is no way for him
to recover this sight other than to wait for it
to expire (potentially a long time), and then try
to buy it at auction (or whatever) competing with
domain-name professionals. Or if it is deemed to
be useless by all of them, redeemed under the
RGP. If he is an innocent jewelry store owner,
this will not be an apparet path to him, and
besides, he will already have gone broke waiting for expiration.
3. Under the rules we have discussed, the only
surer path would be for the claimant (Rolex) to
take over the domain and then sell it back to him
if he promises to be good, and even that could
take a while unless we allow mid-term transfers
(which the registries have said would be hard to implement).
Alan
At 01/12/2009 01:20 AM, Jeff Eckhaus wrote:
Alan,
Let me give an example of the problems I see
with the transfer to a claimant after a successful URS.
As a registrar I have a registrant that is
starting an online jewelery store and decides to
place a Rolex logo on their website, not to sell
fake Rolexes but as an indication of the type of
business they are in. As we all know Rolex is
very vigilant about their mark and maybe decides
to file a URS against the registrant. They may
not go this route but it is an option available
to them. Now, the small business owner may be in
violation of the URS and the website is now
suspended and the owner loses the URS and the
domain and it is transferred to Rolex. There may
be no chance for the registrant to correct their actions.
As a person who has to deal with customers and
small businesses on a daily basis I can tell you
that many are start up businesses with little
education of the laws. While not knowing the law
is not an excuse to break it, I would like to
give this registrant a chance to correct their
error and keep their businesses domain name.
These sorts of issues are not fringe cases, but
the kind of questions and problems that as a
registrar we see on a daily basis. Hope this helps shed light on my position.
Jeff
________________________________________
From: owner-gnso-sti@xxxxxxxxx
[owner-gnso-sti@xxxxxxxxx] On Behalf Of Alan
Greenberg [alan.greenberg@xxxxxxxxx]
Sent: Monday, November 30, 2009 8:57 PM
To: GNSO STI
Subject: RE: [gnso-sti] Transfer of domain name
to claimant after successful URS
At-Large generally supported allowing a transfer
after a successful URS, presuming sufficient
time is provided for a late URS registrant reply
(perhaps 90 days after default). If allowed, it
should preferably be structured to be done
without major registry re-engineering. We would
support allowing a URS claimant to pay for an
extension of the registration if too close to
expiration, and then to be allowed to transfer
at expiration time. Since the domain name will
already be flagged (since it must be pointing to
a URS provider URS page), it should be possible
to take this special action if the URS claimant
has indicated the desire to transfer when filing the URS claim.
We understand that this may take some generic
names out of circulation, but the same can and
will happen based on TM holders own actions in
defensive registration and this is likely to have a smaller net effect.
Alan
At 30/11/2009 09:34 PM, Nevett, Jonathon wrote:
Mike:
It would be great if you could provide some
evidence to back up some of your statements.
For example, you say that the URS would ?take
almost as much time as a UDRP decision.? I
believe that we are contemplating a process of
approximately 25 days from complaint to
decision. What is the average length of a UDRP
from complaint to decision in a contested
case? Does WIPO publish that kind of
data? Perhaps Mark, as a UDRP panelist, would
know generally how long it takes.
You also say that a URS would ?cost almost as
much? as a UDRP case. The IRT recommendation
was in the $100-200 range and the ICANN staff
recommendation was $300 isn?t that
significantly lower than the current UDRP fees?
The goal of the URS was to give an aggrieved TM
holder the choice between a cheaper and faster
process that would result in a takedown vs. a
longer more expensive process that would result
in a transfer. I agree with you that if we
continue to morph the URS into the UDRP, it?s
not worth having both. The better approach,
however, is to keep the recommended distinctions
and provide TM holders with a choice.
Thanks.
Jon
________________________________
From: owner-gnso-sti@xxxxxxxxx [
mailto:owner-gnso-sti@xxxxxxxxx] On Behalf Of Mike Rodenbaugh
Sent: Monday, November 30, 2009 8:46 PM
To: 'GNSO STI'
Subject: RE: [gnso-sti] Transfer of domain name
to claimant after successful URS
Jeff,
The URS was a compromise devised by a small
subset of the community, in response to the
larger issue of deterring cybersquatting in new
TLDs. The URS, if it does not have a transfer
option, will not have any deterrent effect. It
will take almost as much time as a UDRP
decision, and cost almost as much, while still
forcing a UDRP or court action in order to
effectively solve the problem. Why would anyone use it?
The UDRP has proved ineffective as a deterrent,
since the advent of PPC advertising (and then
domain tasting), due to the cost and time
required for a decision, compared to the cost
and time required to register clearly infringing
domain names. This is obvious, and is the
reason why we are all trying to find a better
solution that will deter obviously bad
behavior. To develop a cheaper and quicker
process for obvious cases, while still
protecting due process interests of registrants,
was the reason for the URS (and the IRT).
While the ?no transfer? version of the URS might
have made more sense if the entire ?tapestry? of
RPMs were adopted, it makes no sense when the
only new solutions will be a Clearinghouse and
the URS. In any event, the IRT was incredibly
rushed, and likely did not think through all of
the issues as thoroughly as they would have done
had they had more time and broader input. This
is why we are now convened as the STI, to come up with something better.
Mike Rodenbaugh
RODENBAUGH LAW
548 Market Street
San Francisco, CA 94104
(415)
738-8087<http://service.ringcentral.com/ringme/callback.asp?mbid=57178438,0,&referer=http://rodenbaugh.com/contact>
http://rodenbaugh.com<http://rodenbaugh.com/>
From: owner-gnso-sti@xxxxxxxxx [
mailto:owner-gnso-sti@xxxxxxxxx] On Behalf Of Jeff Eckhaus
Sent: Monday, November 30, 2009 5:24 PM
To: 'Neuman, Jeff'; Alan Greenberg; GNSO STI
Subject: RE: [gnso-sti] Transfer of domain name
to claimant after successful URS
I know we have debating this issue and the more
that I think about this the more I think we are
moving away from the original concept of the URS
with the allowance of a transfer. The main idea
is a Uniform Rapid Suspension, not a transfer.
If there is a need to transfer the domain there
is the UDRP, an established process that has
years of experience and data behind it to show
what are the levels needed to transfer domains.
As a Registrar, I am very concerned about the
complaints, issues and other proceedings against
registrants who have had their domains
transferred away from them without what they believe is due process.
Here is the language from the ICANN document in
case many have forgotten what the goal of the URS is
The URS would exist as a complement to the
UDRP , which also addresses matters of trademark
infringement in domain names. However, the URS is designed to
provide a faster means to stop the operation of
an abusive site, while the UDRP provides for transfer of
a contested domain name to the rights
holder. Rights holders seeking to pursue cases of infringement
could use either or both procedures.
I know we have all been working many hours on
this and moving ahead but sometimes we need to
look back at the original idea to move forward
Jeff
-----Original Message-----
From: owner-gnso-sti@xxxxxxxxx [
mailto:owner-gnso-sti@xxxxxxxxx] On Behalf Of Neuman, Jeff
Sent: Wednesday, November 25, 2009 7:21 AM
To: Alan Greenberg; GNSO STI
Subject: RE: [gnso-sti] Transfer of domain name
to claimant after successful URS
Sorry I missed the call yesterday, but everyone deserves a vacation once
in a while. Please remember, that while I do not have an issue with a
transfer, I have a huge issue with the proposed waiting period.
Remember, under the UDRP, all implementation of decisions is done at the
registrar level. What is being proposed now with the URS is
implementation at the registry level which is a whole new ball game. To
the extent that the STI expects the Registry to implement the 90-180 day
waiting period before the transfer, this is something I strongly oppose.
This would require all new coding of each new registry for a process
that will rarely (in the scheme of things) be used.
In addition, under the UDRP, the registrar has a short 10 days to hold a
name while pending appeal. The number of cases that fall into an
expiration/auto renew period is very small. Extending that
waiting/appeal period to 90-180 days drastically increases the number of
names that will fall into that expiration period. That is a huge
implementation problem.
My strong suggestion....make it like the UDRP. Transfer option offered
right away with a 10 day appeal period and have it implemented the same
way the UDRP is implemented. The registries will not support a new
system just for URS.
Sorry to be so direct, but I want to make sure my disagreement is clear.
Jeffrey J. Neuman
Neustar, Inc. / Vice President, Law & Policy
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-----Original Message-----
From: owner-gnso-sti@xxxxxxxxx [ mailto:owner-gnso-sti@xxxxxxxxx] On
Behalf Of Alan Greenberg
Sent: Wednesday, November 25, 2009 9:57 AM
To: GNSO STI
Subject: [gnso-sti] Transfer of domain name to claimant after successful
URS
The following comments are my own and have not yet been discussed
with Olivier or At-Large.
At the end of the call yesterday, it seemed that the issue is
transfer of the domain name after a successful URS has become a
critical go/no-go issue.
I was not a strong supporter of this to start, and in fact accepted
the argument that just because one slime-ball misused a TM which also
has alternate meanings, does not mean the next registrant will, and
we should not take names out of the name pool forever due to one
problem.
Based on what I have heard to date, I have changed my mind.
The argument that the next registrant may use the generic word or TM
in a more benign way is true, but the chances are that eventually
that name will go back into the pool again (via a delete or an
auction) and the NEXT user may not be as conscientious.
I support the ability of a successful URS claimant to adopt the name
(at their choice) but only after some reasonable amount of time has
passed. Perhaps 90-180 days.
We have already generally acknowledged that there is a need for a
claimant to be able to extend a registration if necessary so that it
does not expire during the URS process (although it is not clear how
easy this will be to implement).
I would suggest that a successful claimant can take over the name at
the end of the registration period (it is locked until then), but in
no case less than 90 days.
Since a locked-after-successful-URS domain will be explicitly flagged
as such (since it will point to the URS provider's special alert
page), it should be possible to implement this.
Alan
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