[ga] Re: [GTLD Registries List] Legal Issues involving .info Sunrise cases

["Richard Henderson" <richardhenderson@ntlworld.com>]

What is the situation where a .info Sunrise registrant applied for names but
did not provide the 4 mandatory Trademark datafields? Is the applicant at
fault for applying without that data (which in some cases people did not
know) or are the Registrar and Registry at fault, because, knowing the
rules, they went ahead and broke them - collected the money - and left the
applicant (ultimately) without the product they had paid for?

CASE A: Take the case of Dejan Trpkovic.

He applied for 6 names and I personally believe he applied in good faith
(but ignorance of the rules). He asks Afilias (though the question could
also be addressed to the Registrar):

"6.             You company ACCEPTED all our registration requests in the
sunrise period and COLLECTED the payment in full. WHY DID YOU ACCEPT THE
PAYMENT IF THE SUBMITTED REGISTRATIONS WERE NOT IN ACCORDANCE WITH THE RULES
TO BEGIN WITH?"

I have replied to him as follows, after he asked me for advice:

"This is the key question.

To take money (a lot of money) for a product that the Registry knows is
ineligible,
is at the very least highly questionable business behaviour. The rules
categorically state that applications should not be submitted unless all
four Trademark datafields have been filled in properly.

The injury was caused not by your action in applying for the names. Anyone
can apply for a name.

The injury was caused because the correct procedures were broken. If they'd
stuck to the rules, no expenditure of money would have taken place, because
it was clearly stated that applications such as yours were not permissible
.
The Registrar's decision to sponsor the names, and the Registry's decision
to register them : THAT was THEIR choice - it was at the point of sponsoring
and registering that the expense took place : they should accept the
consequences.

You did not deceive anyone. You expected the Registry to know what they were
doing. If they'd said, "According to our rules we are not meant to register
these names, they will be invalid, and your money will be wasted," then you
would never have paid the money in the first place.

It was Afilias's job to STOP this process at some point. The
Registry/Registrar
rules apply to the Registrar not the customer. Even after the registrations
had taken place, Afilias STILL had contracted powers (clearly defined) to
cancel those registrations for being ineligible (which they were, because
they breached the conditions of the Registry/Registrar agreement). Indeed, I
myself requested that Afilias cancel such names. But Afilias chose to retain
their financial benefit and uphold the ineligible registrations.

It was at the point of registration that expense was incurred. Since the
registration was invalid (which YOU didn't know at the time, but they did)
they must surely take responsibility for their own (rule-breaking) actions.

Just my thoughts and opinions, but I am not involved in any actions. I
cannot help you with those. The statements above are to be taken as my
personal opinion, not statements of fact (whatever I may believe).

Richard"

CASE B: The staggering Lorenz case.

Domain Bank sponsored 93 Sunrise applications from Lorenz, where he entered
"NONE" in each of the 4 mandatory Trademark datafields. The
Registry/Registrar Agreement clearly states that the names should NOT be
submitted if those datafields are not filled in properly. If they have a
fake number etc then the Registry allows the details to be checked later,
but if there's no number etc then submission of the names breaks the
Agreement. The Registrar at that point is in breach of the agreement.

Lorenz was charged in region of $15000 for the submission of details which
the Registrar must have known were ineligible. Shortly afterwards (and
before Landrush) Lorenz realised these applications must be ineligible and
sent 23 e-mails (I have them all) to Registrar and Registry requesting that
the names be cancelled. The request was turned down.

The issue as in Case A is, who is responsible for the expenditure of the
money?

My response to Lorenz, in the form of advice not statement, was as follows:

 "to take money (a lot of money) for a product that the Registrar knows is
ineligible,
is at the very least very questionable business behaviour. When you link
that to the fact that the Registrar is also the CEO of the Registry, and is
therefore fully versed with the rules and regulations - and STILL goes ahead
AND they get registered - well I can't see what option he has but to admit
his company submitted the names incorrectly (AT WHICH POINT THE EXPENSE WAS
INCURRED)
and should refund your money.

The money was not lost by your action in applying for the names.

The money was lost by DomainBank's action in submitting the names
incorrectly, thereby rendering them valueless.

The money was lost because DomainBank broke the correct procedures. If
they'd stuck to the rules, no expenditure of money would have taken place.
THAT was THEIR choice - they should accept the consequences.

You did not deceive anyone. You didn't pretend you had Trademarks when you
didn't. You just told them you had none.

It was their job to STOP the process at that point. The Registry/Registrar
rules apply to the Registrar not the customer.

Richard"

FOOTNOTE: I have asked Hal Lubsen (whose Registrar Company in my opinion
broke the rules by submitting the 93 names without Trademark details, and
the Registry of which he is CEO then registered the names even though the
rules had been broken) to explain his position on this case, because (a)
there seems to be a conflict of interest (b) his company appears to have
broken Afilias's own rules, even though he's Afilias CEO and (c) because
Lorenz may be asked to complete payment as a consequence of DomainBank's
actions.

Hal Lubsen has never responded. I find this inexplicable except in terms of
his own self-interest. Whereas Jeff Neuman has been responsive and
pro-active where problems arose the other week over problems with the .biz
Group 2B, Hal and Afilias have failed to give any answer to these concerns.

So once again I am left posing the question to ICANN: is there ANY
accountability in your administration? And is there ANY protection for the
consumer?

My complaint is that the original Registry Agreement was so flimsy that the
planned process was blown out of the water (at great cost to some
consumers - not specifically these Sunrise applicants above); and that even
when the accounts of abuse of the rules started flooding in, they failed to
implement their own rules (and specifically the Registrar/Registry rule
cited above) resulting in loss for various parties.

ICANN has presided over it all - made no detailed public statement - and
taken little or no action to put the consumer first, even though they have
been fully informed of the details.

Little wonder that the public at large feel they should be properly
represented on the ICANN board, when there seems to be so little
accountability in cases like these.

And the ones I've cited here are among the least populist, because many
people would say "they should have known better", but there were thousands
of others who were victims of the whole "abomination" (to quote resigning
Director Robert Connelly). This is just the tip of the iceberg.





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