Re: [nc-deletes] Deletes during UDRP

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

From: "Jane Mutimear" <jane.mutimear@twobirds.com>
>
> They commented that currently most registrars pay the renewal fee
> themselves on the relatively rare occasion that a domain is about to
> lapse during UDRP proceedings.

Now it is "rare"....

> From the large registrars Tucows is the only one that
> doesn't do this.  They commented that it might be cheaper from
> the registrars' perspective to all adopt this approach (of renewing
themselves)
> rather than what we were proposing.  Their reason for saying this was
because of
> the hassle of dealing with refunds (which they have some experience of due
to .info
> sunrise challenges).

The solution to a lot of problems is "make the registrars pay".
Interestingly, this solution never arises in connection with problems that
the registrars themselves have.  I don't understand the "refunds" part.
Refunds to whom and for what?

It is cheaper from the registrars' perspective to exipre domains which are
not paid up, and to renew domains which are.


> One concern they had was that under our system we are effectively forcing
> the complainant to stay with the same registrar if they win - or they have
to pay twice.

They are concerned that someone who just dropped $1500 on a UDRP, and many
more times that in attorney's fees, is going to have to pay something on the
order of $20 if they want another registrar?  Clearly your anonymous
informant at WIPO has never dealt with Register.com or Verisign on the issue
of post-UDRP registrar transfers.

> More fundamental was a question they raised as to what should happen to the
> UDRP proceedings where the registrants opts not to renew the domain.  They
suggested
> that the domain should go by default to the complainant.

Why should it?

And are you going to offer a refund to the WLS subscriber who had already
paid to be first in line upon expiration of the domain name?  Because this
proposal merely turns the UDRP in WLS-Plus (tm).

We went over this already.  In order to obtain transfer of a domain name, the
Complainant must prove its case under the UDRP.  To transfer domain names for
any other reason is an expansion of the UDRP.

I'd agree with the proposal if I thought there was any rational answer to the
question of "why".  Responding to the number of ways this approach can be
abused is not a positive reason for the proposal.

> 1.  A udrp complaint goes through a formality check prior to being
> accepted - therefore if there is not prima facie case made out (eg there is
no
> right claimed), it is rejected.

First of all, the practices of one UDRP provider is not representative of all
of them.   In the tobacco.com dispute, the NAF commenced the case even though
the complainant had failed to remove all instances of "america.com" of which
the tobacco.com filing was substantially a copy.

One makes a blanket assertion of three things in a UDRP complaint, and it
flies through this "formality check" just fine.  It can be done in less than
a few short sentences.

> 2.  A udrp complainant when deciding to initiate an action would
> not know whether the domain name was going to be renewed.  If they
> guessed it wasn't it would be far cheaper to file a WLS than to file a UDRP
claim.

Jane, the entire point of this whole exercise to address this "rare"
situation that is now claimed to emanate solely from a single registrar, was
to address this uncertainty.  If the respondent does not renew the name
during the UDRP, then under the proposal we have already made, the
complainant knows to a certainty that the name will not simply drop.  And
they know to a certainty that if they win their default case then they will
get the domain name.

What you are saying here, by throwing around terms like "prima facie case"
which make the non-legal types think the complainant has to prove something,
is that the UDRP should be a mechanism for obtaining domain names even if the
complainant cannot prove a right to the domain name.  That's just wrong in
the context of the UDRP, which is intended to address cybersquatting and
should be kept that way.

I guess the uncertainty of WLS subscribers, introduced by the newly-proposed
(and already decided against) scheme isn't important to anyone.

> Therefore, I would certainly support a simplified rule that the if
> the respondent hasn't paid 30 days after the renewal grace period,
> the domain goes to the complainant and if the complainant chooses another
> registrar, they have to refund the original registrar's renewal fee.

We discussed this already.  Using the UDRP to transfer domains to
complainants without a panel decision ordering transfer of the domain name is
simply wrong.

> OK, it would have been helpful if I'd discussed this with WIPO before now,

Who at WIPO?  Perhaps if the originator of this proposal could explain it
directly, it would make more sense.

> but if you would like me to draft a couple of paragraphs saying
> "Alternatively, this problem could be solved by ...." I would be
> happy (well that's slightly too strong a word given what else I have
> to try to get done today) to do so.

Perhaps we might get a feel for whether there is a consensus on the proposal
before grafting it into the report.