[council] draft resolution on registrar to registrar handling of DM holder requests to change registrars

["Shapiro, Ted" <Ted_Shapiro@mpaa.org>]

I attach for the purposes of discussion of agenda item 2b concerning the
registration or transfer of domain names subject to dispute resolution
proceedings, a further modified and clarified version of the draft
resolution for today's teleconference . I realize that this is rather late
in the game, but due to the exigency of the situation, we felt it was
justified. The model protocol was formulated by members of the IP
constituency over the weekend in an effort to be ready for today's meeting.
The crux of the resolution remains the same. I attach in word and html as
well as in the body of the e-mail.
 <<prot1.htm>>  <<prot1.doc>> 
MODEL PROTOCOL FOR REGISTRAR TO REGISTRAR HANDLING OF REQUESTS BY A DOMAIN
NAME HOLDER TO CHANGE REGISTRARS UPON NOTICE OF A POSSIBLE CLAIM

	Certain test bed registrars are already operational and more are
rapidly coming on line with each passing week.

	There is presently evidence of forum shopping for registrars with
different dispute policies by domain name holders for improper purposes,
including, but not limited to seeking to avoid the assertion of rights by a
third party to that same domain name or the compliance with a cease and
desist letter, or to avoid the initiation of a dispute policy by the
registrar from which the domain name holder is seeking transfer, or the
resolution of a properly invoked dispute proceeding under the policy of the
registrar from which the domain name holder is seeking transfer.

The existing dispute policies presently in place and policies being
discussed do not address any protocol for registrar to registrar handling of
requests by a domain name registrant to change registrars upon notice of a
possible claim.

	ICANN should be able to make decisions without having to wait for
quarterly meetings and a decision on this proposed model protocol is
necessary to discourage ongoing undesired forum shopping.

	ICANN already has made a decision that registrars must have a
dispute policy in place before they can become operational.  By resolution
in Berlin, ICANN has encouraged the test bed registrars to formulate a model
policy and is providing assistance to them in this regard. 

	The Intellectual Property Constituency therefore offers the
following proposed model protocol for registrar to registrar handling of
transfers for second level domain name registration records.  We believe
that this protocol would assist in protecting intellectual property rights
holders.  Importantly, the proposed protocol does not call for hindering the
use of the domain name by the registrant assuming the dispute policy of
their existing registrar so permits.  The proposed protocol also attempts to
address the time gap between the receipt of a cease and desist letter by the
domain name holder and the invocation of a registrar's dispute policy
(assuming that policy does not provide for the placing of a hold on the
name).  During this time gap, a domain name holder can seek to change
registrars in order to avoid the invocation of its initial register's
dispute policy.

Finally, if the domain name holder seeking the transfer has been improperly
blocked by a third party from transferring registrars, that domain name
holder will not be precluded from availing themselves of any and all
appropriate remedies and actions.

	Once a registrar's dispute policy has been properly invoked and the
dispute is pending and remains unresolved, the registration of second level
domain name registration record shall not transfer that domain name to
another registrar until the dispute is properly resolved.

	No registrar shall accept from any other registrar the transfer of a
second level domain name registration record without receiving from the
registrant seeking to transfer the domain name a sworn declaration or
affirmation, under penalties of perjury in the applicable law of the
jurisdiction where taken, that the domain name holder seeking such transfer
has not received a cease and desist letter or notice of dispute concerning
the domain name sought to be transferred from any third party.

prot1.htm

prot1.doc