Whois database

[<twilloughby@xxxxxxxxxxxx>]

Dear Sirs,

I write as a lawyer engaged in the field of IP and a domain name dispute 
adjudicator for both WIPO (UDRP) and Nominet (.uk DRS). 

An efficient, reliable, accessible database identifying domain name registrants 
is crucial to the operation of the UDRP and similar policies. Already, as is 
plain from many of the recent decisions under the UDRP, both legitimate 
complainants and the dispute resolution service providers such as WIPO, are 
encountering difficulties with proxy services. Who is the proper respondent? 
The proxy service provider named as the registrant, or the person hiding behind 
the proxy service? Many panelists are treating the proxy service provider as 
the proper registrant (at any rate in the first instance, although the 'true 
owner' may get joined in later). 

If you go for Motion 1, the Operational Point of Contact will become the target 
for complaints under the UDRP, people who by definition cannot have any of the 
rights or legitimate interests of the kind set out in paragraph 4(c) of the 
UDRP. If the 'true' owner comes in at a later stage, it means that an 
additional step is being introduced into the UDRP procedure, which is not 
currently accomodated by the present wording. Registrars will find that they 
get far more involved in disputes than previously.

If you go for Motion 3, you deprive the UDRP of its heart. New registrars, 
ignorant or reckless as to their obligations under the UDRP are already making 
life very difficult for the UDRP service providers - not responding to 
registrar verification requests, failing to lock names etc. Removing any 
conctractual obligations in relation to their Whois reponsibilities will simply 
promote a return to the cowboy era of the past - the UDRP will become less 
attractive for trade mark owners, who will be likely to resort to the courts - 
if the 'true' registrants cannot be readily identified, the courts in the UK 
(and I suspect elsewhere) are likely to change their approach to the liability 
of registrars.

I support Motion 2. The issue is far too important for far-reaching changes to 
the system to be allowed without a very clear idea of the consequences for all 
constituents of the Internet community.

I use the registrar Whois databases regularly (i) to check the accuracy of 
submissions made by parties to domain name disputes; (ii) to identify the 
potential vendor of a domain name in which a client may be interested; (iii) to 
check who the registrant is as part of an investigation on behalf of a client 
to see whether the registrant has a bona fide reason to own the registration.

The UDRP was widely thought to have a worthwhile purpose when it was introduced 
and the courts of most countries have supported it not only by respecting UDRP 
decisions, but also by judicial dicta in trade mark infringement and unfair 
competition cases effectively reflecting the aims of the UDRP and the concerns 
of those who drafted it. Removing from potential complainants the ability to 
identify and investigate registrants of domain names and their activity/track 
record in relation to domain names will severely undermine the UDRP. As 
indicated, it will focus complainants' attentions on the registrars and 
'Operational Points of Contact', who will instead be made the subject of court 
proceedings (known in the UK as Norwich Pharmacal applications) whereby holders 
of information can be required toi disclose information they hold. They may 
also be sued if they do not immediately transfer a domain name on receipt of 
notice of the complainant's rights. What is at present relatively simple for 
everyone will descend into a foggy unregulated mess.

yours faithfully

Tony Willoughby


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