Re: [nc-deletes] IPC statement on deletes

[Bret Fausett <fausett@lextext.com>]

John Berryhill Ph.D. J.D. wrote:

> 
> If anyone is able to convert Ms. Mutimear's file into a non-proprietary
> format, I would be greatly appreciative.

Intellectual Property Constituency Position Statement on Deletes Issue Paper

                             22 November 2002

This is the position of the Intellectual Property Constituency (IPC) on the
matters raised in the Deletes Issue Paper, using the numbering appearing in
that document.

Issue 1: Uniform delete practice after domain name expiry by registrars

As users of the DNS, the members of the IPC and those they represent would
favour a uniform approach by all registrars in relation to deletion
practice.  This would help ensure certainty and avoid confusion on the part
of the user (both in terms of a user who has inadvertently allowed a domain
to lapse and one wishing to purchase a lapsing domain).  However, we
recognise that at least some of the registrar community want to retain the
freedom to set their own practices in this respect.

Therefore, we would suggest a compromise scenario whereby there is a minimum
standard which all the registrars would follow under which no deletion
request would be sent to the registry within the first say 15 days of
expiry, but that a delete request must be sent after x number of days
(either the current 45 or a shorter period), leaving it to each registrar to
elect which day in that latter period on which deletion requests would be
sent.  A shorter period may be appropriate considering the introduction of
the Redemption Grace Period (RGP) will give registrants an extra 30 days in
which to redeem a lapsing domain name.

Each registrarıs policy should be made clear to registrants upon
registration and the policy should be posted on the registrarıs main
website, so that a registrant who has accidentally failed to renew a domain
name can easily ascertain what stage a lapsing domain name has reached.

Deletions during UDRP action

Currently there is no uniform approach to what happens in the event that a
domain name expires whilst a UDRP action is ongoing.  Some registrars will
not send the delete request to the registry, effectively paying for the
renewal themselves, although the ³lock² which they are obliged to put on the
domain name under the UDRP procedure does not require this.  Other
registrars allow the domain to lapse, meaning that the domain name may have
a new owner by the time the UDRP decision is handed down, making the
decision ineffective.

Although this happens relatively rarely, its occurrence is enough to justify
trying to unify the system to make it fair to all participants.   A case
manager at WIPO mentioned informally that she has seen between 20 - 30 cases
where the domain name has lapsed and been registered by a third party prior
to the UDRP decision being handed down.

In some cases where an infringing domain name is coming up for renewal it
will be appropriate for the trade mark owner to wait and see if the domain
is renewed before commencing a UDRP action.  However, where several months
of the term are left and the infringement is such that the rights holder
needs to take prompt action, waiting to see whether the domain will be
renewed will not be appropriate.  Although most UDRP cases are concluded
within 2 months, on occasion the time taken for a decision to be issued is
longer.

Any proposal for resolving this system should ideally take into account the
following:

  1. It is not appropriate for the registrars to be out of pocket by
maintaining a domain name registration in these circumstances, although the
IPC appreciates the actions of those registrars who have taken this approach
in the meantime.

  2. A registrant who wishes their domain name to lapse should not be forced
to continue as the registrant against their wishes.

  3. A registrant whose domain name lapses during a UDRP action should be
afforded the same safeguards as any other registrant.

An ideal solution would be as follows:

The lapsing domain name is treated the same as any other lapsing domain name
in that it is subject to the registrarıs delete practice and once a delete
request is sent to the registry, it is subject to the RGP (once
operational).  However, on expiry of the RGP (assuming the domain is not
re-registered by the original registrant) the domain goes on hold, pending
the outcome of the UDRP.  If the UDRP decision results in a transfer, then
the complainant is given say 15 days to register the domain.  If the UDRP
decision results in a cancellation or the complainant fails (or if a
successful complainant does not apply to register the domain within 15 days)
then the ³hold² on the domain is released.

This proposal involves the registries in the system, but hopefully would be
a relatively simple system to implement, being similar to the ³hold² system
operated by Network Solutions under its previous domain name dispute policy.

Under this proposed system the only participants placed at a slight
disadvantage as compared to the current system are the registries.  There
will be a small delay in the domain name being renewed, although it seems
very likely that where a complainant felt strongly enough to bring a UDRP
action they will want to purchase the domain name once available and
therefore this will be a delay in payment to the registries only.  Also, the
need for a domain name to be placed on ³hold² will occur relatively
infrequently and therefore would have a minimal impact on the registryıs
cash flow.  

Issue 2: Deletion following a complaint on WHOIS accuracy

The IPC believe that the current 15 day period for inquiries to be answered
has not been shown to be unworkable.  Given that a deletion for inaccurate
WHOIS data will enter the Redemption Grace Period, we do not currently see
any need to extend this time period.

We consider that it is important that where a domain name which is deleted
for inaccurate data but is re-registered during the RGP, the WHOIS data
supplied at that stage must be verified prior to the registration being
accepted.  

These are the only issues raised in the paper which the IPC wish to comment
upon.

Jane Mutimear

President, IPC