Re: [ga-udrp] UDRP Questionnaire

[Joop Teernstra <terastra@terabytz.co.nz>]

At 22:59 1/07/01 -0500, Andy Gardner wrote:

> >
> >I feel that the Registrar/Registrant contracts are to be modified,
> >specifically to make it clear that Registrant's Names Rights are not
> >automatically 'dead" , just because the fees have not been paid on time.
> >Of course there should be clarity too for new registrants. Therefore, a
> >registrar should not be allowed to "resell" a Domain Name until at least 6
> >months have expired.
>
>I disagree.

That's allright. You take a registrar view.
Let's disagree peacefully, and focus on what we do agree on.

>If someone leases some specialised business equipment, and the
>leasee fails to pay, the leasor has the right to recover that equipment and
>re-lease it to whoever they please. 4 months down the track, the original
>leasee cannot whine about forgetting to pay the lease, and take the
>equipment away from the new leasee.

Domain Names are not just some leased equipment. They are life or death on 
the Net.
My house is not confiscated either immediately upon late-payment of my 
property taxes.
In both cases our rights should be surrounded with protections and safety nets.



> >
> >>This is particularly crazy considering the new registration system gives no
> >>information regarding the name's history at registration time, and the
> >>registration agreements do not warn that prior registrants may have a
> >>perpetual claim on the name.
> >
> >Correct. Especially when it concerns a Trademarked Name and the previous
> >registrant has put the registrar on Notice that re-registering the name to
> >another party would be considered as a contributory infringement.
>
>Sorry. They have responsibility to police their own TM. Failing to pay an
>annual fee comes under failure to police. And if the new leasee is NOT
>using it in the same TM category, they should be out of luck.

Sending a written Notice to the Registrar would be strong evidence of NOT 
failing to police. Letting a name lapse under a particular TLD  could be 
deliberate business decision. (for example when a small TM holder had been 
talked/conned into registering into dozens of TLD's and it' s costing him 
too much)
Again, registrars may not like the drying up of automatic renewals, but 
hey, Andy, since when have you become a registrar? :-)
Let's not nitpick imaginary cases. In principle I agree with you about the 
current one sided registration agreements.


> >>2. Should the complainant or respondent have the right to re-open the case
> >>at a different provider if they can prove that the original panel ignored
> >>or modified evidence mentioned in the decision, in order to match the
> >>decision they wanted to end up at?
> >
> >Elementary principles of justice would say so. But there should be a clear
> >time limit, or else the Name owner is never secure.
>
>Tell that to the poor sods that have had names stolen from them by the
>current process, with zero compensation. There are a number of cases where
>the original owner deserves the name back, and compensation for lost
>income. barcelona.com and bodacious-tats.com spring to mind as examples.

I know, but this is where the stability and security of possession comes 
into play.
Just like with property under Napoleontic law, (the positive Registry 
system)  once your title is Registered, you are the owner and you and all 
third parties can rely on your ownership.

You are used to the different Anglo Saxon system, with less security for 
the owner and more options to declare a title null and void.
For Domain Names and a stable internet, my preference leans towards the 
continental European approach.



--Joop--
Founder of the Cyberspace Association.
Former bootstrap of the IDNO (www.democracy.org.nz/idno/)
Developer of    The Polling Booth
www.democracy.org.nz


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