Re: [ga-udrp] UDRP Questionnaire

["NameCritic" <watch-dog@inreach.com>]

Chris McElroy aka NameCritic

----- Original Message -----
From: "Joop Teernstra" <terastra@terabytz.co.nz>
To: "Andy Gardner" <andy@navigator.co.nz>; <ga-udrp@dnso.org>
Sent: Monday, July 02, 2001 3:20 AM
Subject: Re: [ga-udrp] UDRP Questionnaire


> 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.

Joop, that isn't a Registrar's point of view. If a Domain Name expires a
Registrant is already given 30 days and most of the time even more before
the name drops and is available to register. If you don't pay your
registration fee you lose your domain name. That isn't wrong. There are
services that cost very little that will monitor that for you. You can check
the box to have the registrar automatically renew the domain name for you.
If those are not enough help, then possibly the Domain Name Holder should
look at their ability to run a business. In the case of people with domain
names that are not a business, the Registrar, if smart, will notify them as
much as possible, since when the name is registered it may not be registered
through them.

>
> >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.

But it is currently treated as a lease, so the example does apply. Just as
TM Holders are supposed to police their own marks, Domain Name Owners must
do the same. Where they have both they should make it a priority to do so.
Just because this is the Internet doesn't mean suddenly that there is
supposed to be any babysitters for business owners.

>
>
>
> > >
> > >>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)

No it isn't any evidence of policing their mark IMHO If anything it shows
they aren't willing to and want others to do it for them.


> 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.

This is not the case with domain names. It is currently considered a service
whether we agree or don't agree with that assertion. If you stop paying for
a service you lose that service. Registrar's are not treating domain names
as property and just us treating them like property won't make it so.

>
> 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.

When and if domain names are defined properly and are at least Intellectual
Property in the legal sense, they will have more protection. For now, we
have to look at the reality of how they are or the lack of how they are
being defined.


Chris McElroy aka NameCritic
>
>
>
> --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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