Re: [ga-udrp] UDRP Questionnaire

[Andy Gardner <andy@navigator.co.nz>]

At 10:20 PM +1200 2/7/01, Joop Teernstra wrote:
>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.

It's not a registrar view. It's a "get the domain back in the market place
so someone can use it" view.

NSI have been sitting on "on hold" domains that haven't been paid for for
more than a year. You must be the one with the "registrar" view then?


>Let's disagree peacefully, and focus on what we do agree on.

I've managed to so far, why are you you trteating me like a child. Did you
used to be a school teacher?

>>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.

But they're still leased equipment.

An earthmoving company leases bulldozers. If they don't pay for them, they
lose them. That's life or death for an earthmoving company, unless you have
lots of shovels.

>My house is not confiscated either immediately upon late-payment of my
>property taxes.

Neither is a domain name. It's put on-hold, and numerous warnings are sent
to the address-of-records.

>In both cases our rights should be surrounded with protections and safety
>nets.

They are already.

If you're trying to make out that prior registration of a name gives
someone perpetual rights to that name then I think you need to re-think. If
that's the case, I'll run off to one of those registrars that allows you to
dump a name within 6 days without paying for it. I'll register every
available domain permutation out to 65 characters, dump them all a few days
later, then sit back and wait for some company to build a huge presence
using one of those names. Could take a few years, but I've got plenty of
time. Once they've built the name up to a value of at least 1 million
dollars, I'll wade in with my proof of prior registration and take the name
off them.

>
>
>
>> >
>> >>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.

I'm sorry, I don't see the relevance of this. I would say that failing to
pay for a name is the opposite of "sending a written Notice to the
Registrar".

Or are you saying they can tell the Registrar that they no longer want to
pay for the name, but want to retain rights to it???

>Letting a name lapse under a particular TLD  could be
>deliberate business decision.

Yes. But you appear to be saying that if that company changed its mind at a
later date, it could reclaim that name off the new registrant?

>(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)

Well, there's a sucker born every minute, isn't there?

>Again, registrars may not like the drying up of automatic renewals, but
>hey, Andy, since when have you become a registrar? :-)

Where, exactly, did you get this from? With the UDRP, we're talking about
people LOSING their name to another company that didn't have rights to the
name, but managed to score it via a fraudulent UDRP proceeding. What the
hell does Registrars have to do with this? I think you're on the wrong
channel, Joop.

Were did I mention _anything_ about Registrars in my original notes?

>Let's not nitpick imaginary cases.

THey're not imaginery. This is real.

>In principle I agree with you about the
>current one sided registration agreements.

Excuse me Joop, but I never mentioned Registration Agreements, apart from
the fact that they clearly state that an entity only has rights to a name
as long as they continue paying the annual fee for it. If you think they
can retain rights without paying, I'd say you're on a different planet to
the rest of us.


>
>> >>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.

Exactly. And there isn't any with the current UDRP.

>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.

Yes. As long as you pay the annual lease on the name.

>
>You are used to the different Anglo Saxon system,

You're sounding like you're trying to be my teacher again, Joop.

How do you know what _I'm_ used to?

>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.

I think your idea that people can maintain rights in a domain name by
sending a letter to a Registrar but refuse to pay the annual lease fee is
completely whacky.

-- 
Andrew P. Gardner
barcelona.com stolen, stmoritz.com stays. What's uniform about the UDRP?
We could ask ICANN to send WIPO a clue, but do they have any to spare?
Get active: http://www.tldlobby.com
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