In my experienced opinion "Professional Negligence" could be proven on at least two
levels in Sunrise:I have been programming since 1980 and looked into trademarks
since end of 1999. Have had lawyers confirm the solution to all trademarks using
their mark on the Internet - without 'confussion', 'passing off' etc. - so have good
knowledge of this.
But any competent programmer and lawyer would be able to confirm
the following points.
Anyone wishing to use "professional negligence" against Afilias
(though I believe it fraud) could do so on at least two levels.
FIRSTLY - data
validation subroutines should have been used to pick up that trademark exactly matched
the domain name.
This would pick up registrations like DuPonts of science.info,
when they only had "The miracles of science" - overreaching trademark (unless the
registrant lies).
http://forum.icann.org/cgi-bin/rpgmessage.cgi?newtldagmts;3C512C7E00002046
Afilias
should have checked that domain was for word(s) and not a graphic - which would be
overreaching trademark to claim it as a word.
Also the date of trademark should
have been checked to be within valid range - and not default date.
In a project
of this size and importance - the programmer, systems analyst and project manager
WOULD KNOW they had to have data validation subroutines.
To not have data validation
would not be just "Professional Negligence" - but would have to be a deliberate decision
not to include.
They may plead bargain for "Professional Negligence", to try get
out of charges of fraud.
SECONDLY - what is considered to be a 'flaw' in the system
- the decision not to check the trademark itself:
It was intentional decision to
make the system like that - with this FLAW.
Is it not "Professional Negligence"
to put in this deliberate defect?
There was no attempt to make arrangements to
checkout the owner.
Not to check the actual trademark data - to see if the details
were valid.
On-line data is available for several countries - these could have
been easily checked.
Afilias could have made arrangement with WIPO to check all
United Nations countries.
I would say this intentional flaw, of not checking trademarks,
is "Professional Negligence" - don't you?