[registrars] Proposed Uniform Dispute Policy

["Jason Hendeles" <jason@dotpower.com>]

Jason Hendeles wrote:

Mikki Barry [ooblick@netpolicy.com]has been an actively psrticipating with
ATC to develop our dispute resolutions policy and related legal agreements.
After further discussion, she has presented some significant concerns with
the AOL-Register draft that need to be addressed.  I should also mention
that she has put together a working group of her associates to review and
make recommendations to the proposed policy.  The results of our discussions
will be forwarded to the list.


Mikki Barry wrote:

While I am waiting for the DNRC Board to add to this preliminary look at the
proposed policy (and will forward it when it is completed) my first comment
is that there has been no need shown for any type of uniform dispute policy.
My fear (besides the obvious injustice to small business owners and
individuals) is that it could be seen as an antitrust issue. The market
should decide what dispute policies (if any) should be utilized by
registries.

=====

DRAFT - FOR DISCUSSION PURPOSES ONLY

DOMAIN NAME DISPUTE POLICY

1. Purpose. This Domain Name Dispute Policy (the "Policy") is incorporated
by reference into your Registration Agreement, and sets forth the terms and
conditions that you agree to adhere to in connection with a dispute between
you and any party other than us over the registration and use of an Internet
domain name ("Domain Name") registered to you. By registering a Domain Name
with us, or transferring an existing Domain Name registration to us for
administration, you agree to accept and be legally bound by the terms of
this Policy. Please remember that we are one of a number of Domain Name
reg-istrars, and this Policy applies only to Domain Name registrations that
are administered by us, even if you originally registered the Domain Name
with another registrar.

Comment: If all ICANN registrars are to agree to this policy, it hardly
matters who administers the domain name in reality.

2. What we do. We submit applications to the appropriate Domain Name
reg-istry to register or renew "second-level" Domain Names in the .COM,
.ORG, and .NET top level domains, and also administer second-level Domain
Name registrations. A second-level Domain Name refers to the characters to
the left of the dot that precedes the top level domain. For example, in the
Domain Name "[name of registrar].com," the term "[name of registrar]" is the
second level Domain Name. We submit registration applications for
second-level Domain Names on a first come, first served basis. We do not
take any steps to verify that you have the right to register a Domain Name
other than to confirm that, to the best of our knowledge, the Domain Name is
not currently registered to someone else. We do not check to see whether
someone else has trademark or other rights in the Domain Name you want to
register.

Comment: Good idea. Registries should not be responsible for being
"trademark police."

3. Your Representations. By applying to register for a Domain Name, or by
asking us to administer or renew a Domain Name registration, you hereby
represent and warrant to us that (a) the statements that you made in your
Registration Agreement are complete and accurate; (b) to the best of your
knowledge, the registration of the Domain Name will not infringe upon or
otherwise violate the rights of any third party; (c) you are not registering
the Domain Name for an unlawful purpose; and (d) you will not knowingly use
the Domain Name in violation of any applicable laws or regulations. We
suggest that you seek to determine whether another person, corporation, or
other entity has prior or superior rights to use the Domain Name(s) you
would like to register. Please note that if you select a Domain Name in
which another party has legally enforceable rights, you may expose yourself
to a lawsuit for monetary or other damages, and are also at risk that a
court, arbitrator or other judicial or administrative body could instruct us
to cancel your Domain Name registration and/or transfer it to another person
or entity .

Comment: Paragraph (b) is utterly ridiculous. Even trademark attorneys can't
represent and warrant to the best of their ability that they are not
infringing on any possible third party located anywhere in the world. This
is an unfair burden to place on domain name registrants.

4. Revocation. We will suspend, cancel, transfer or otherwise modify Domain
Name registrations in the following circumstances:

a. our receipt of written or appropriate electronic instructions from you or
your authorized agent to take such action;

b. our receipt of an order from a court or arbitral tribunal, both of
com-petent jurisdiction, requiring such action;

c. our receipt of an order or instructions requiring such action from an
Administrative Panel (as defined in paragraph 5 below) in any
ad-ministrative proceeding to which you were a party; and/or

d. our receipt of an order or instructions requiring such action from an
administrative body or a dispute resolution service provider to effect the
terms of the dispute policy of another registrar.

We may also suspend, cancel, transfer or otherwise modify Domain Name
registrations in accordance with the terms of your Registration Agreement.

5. Mandatory Administrative Proceeding.

a. Standards. You hereby agree to submit to an administrative pro-ceeding
conducted under the auspices of any of the administrative providers listed
on Exhibit A hereto (each, a "Provider") in the event that a complainant
asserts that: (i) your Domain Name is identical or misleadingly similar to a
trade or service mark in which the com-plainant has rights; and (ii) you
have no rights or legitimate interests in respect of the Domain Name; and
(iii) your Domain Name has been registered and is being used in bad faith.

Comment: Mandatory arbitration adds to costs. See Michael Froomkin's dissent
to the WIPO dispute policy. Also, there is no downside for anyone to allege
that a domain name is "misleadingly similar." Further, what type of trade or
service mark can be used to invoke this policy? Federally registered ones?
State ones? Common law ones?

b. Evidence of Registration and Use in Bad Faith. For the purposes of
Paragraph 5(a), the following, in particular but without limitation, shall
be evidence of the registration and use of a Domain Name in bad faith: (i)
your offer to sell, rent or otherwise transfer the Domain Name registration
to the complainant or to a competitor of the com-plainant of the trade or
service mark, for valuable consideration; (ii) an attempt to attract, for
financial gain, Internet users to your website or other on-line location, by
creating confusion with the trade or service mark of the complainant; (iii)
the registration of your Domain Name in order to prevent the owner of the
trade or service mark from reflecting the mark in a corresponding Domain
Name, provided that a pattern of such conduct has been established on your
part; and/or (iv) the registration of your Domain Name in order to disrupt
the business of a competitor.

Comment: It is a common and accepted practice when threatened with a lawsuit
or a cease and desist letter, to offer to settle the issue by an exchange of
services, money, or otherwise. Under (i) here, a domain name holder who
offered to give up the domain name in exchange for registration fees charged
by the registry and their ISP would be evidence of "bad faith." Calling a
common litigation settlement practice "bad faith" is unwarranted.

(ii) is vague enough to be meaningless. Of course a domain name holder would
try to attract people to their website, often for financial gain. The phrase
"or other on-line location" is also confusing. Does this mean that by use of
an email address one is "attempting to attract people for financial gain?"
How about a free FTP site? What is "creating confusion?" Seems that "bad
faith" is way too easy to "prove" here.

(iii) What does this mean? Again, it is vague and difficult to disprove. The
domain name holder would be at severe disadvantage.

(iv) Same as (iii). Only moreso actually. What is "disrupt the business of a
competitor?"

c. Process. The rules of procedure to be applied by each Provider,
in-cluding the process for initiating a proceeding before that Provider and
selecting a panel to hear the dispute (the "Administrative Panel"), are set
forth in Exhibit B. We may delete or add Providers in our sole discretion.
The complainant shall select the Provider before which the proceeding shall
be brought, and shall pay any initial fees specified by the Provider. The
complainant may initiate a proceeding under this Policy pursuant to a
Provider's rules of procedure and request that the Administrative Panel
selected to hear a dispute consolidate other outstanding disputes between
you and the complainant, even if such disputes involve Domain Name
registrations maintained by another registrar(s). The Administrative Panel
may consolidate all such disputes in its sole discretion and if it is
competent to decide disputes over such Domain Name registrations due to the
fact that such dis-putes are governed by a domain name dispute policy
identical to this Policy in all material respects.

Comment: Given that this dispute policy is being mandated by ICANN
registries, is the line mandating "identical to this Policy in all manterial
respects" even meaningful?

d. Fees. All fees incurred in connection with any dispute before an
Ad-ministrative Panel pursuant to this Policy shall be paid as set forth in
the relevant Provider's rules of procedure.

Comment: So the provider COULD say that the loser pays, and an individual or
small business who had this policy invoked upon them with vague and
difficult to disprove showings of "bad faith" would not only lose the domain
name, but would have to pay for it too?

e. Our Involvement in Administrative Proceedings. We do not, and will not,
participate in the administration or conduct of any proceed-ing before an
Administrative Panel. In addition, we will not be re-sponsible for any (i)
decisions rendered by the Administrative Panel; or (ii) damages arising out
of (X) the Administrative Panel proceeding; or (Y) the implementation of the
decision rendered by the Ad-ministrative Panel.

Comment: If I was representing a domain name holder and this "bad faith"
policy was invoked and my client lost their domain name without any showing
of infringement, I would likely bring suit against the registry regardless
of the above.

f. Maintaining the Status Quo. We will not change the status of any Domain
Name registration under this policy except as provided in Section 4 hereof.

g. Awards. The remedies available to a complainant pursuant to any
proceeding before an Administrative Panel shall be limited to requiring that
we suspend or revoke your Domain Name registration or transfer your Domain
Name registration to the complainant. An Ad-ministrative Panel may also
determine the allocation of the costs of the administrative proceeding,
including any initial costs paid by the complainant, as between you and the
complainant.

h. Notification and Publication. The Provider shall notify us of any
determination made by one of its Administrative Panels. The determi-nation
of any Administrative Panel shall be published over the Inter-net by the
Administrative Panel unless the Administrative Panel de-termines in its sole
discretion not to do so either on its own or at the of a request from one of
the parties.

i. Opportunity for Court Proceeding. The mandatory administrative proceeding
requirements set forth in this Paragraphs 5 shall not pre-vent either you or
the complainant from submitting your dispute to a court of competent
jurisdiction for independent resolution before or after such mandatory
administrative proceeding is commenced. If an Administrative Panel
determines that your Domain Name should be revoked, suspended or
transferred, we will implement that decision seven (7) days after being
informed by the Panel of its determination, unless we receive from you a
copy of a complaint, file-stamped by the clerk of the court, challenging
that decision.

Comment: Seven days is not enough to secure competent counsel and get a suit
filed.

6. All Other Disputes and Litigation. Disputes between you and any third
party regarding your Domain Name registration that are not subject to the
mandatory administrative proceeding provisions of Paragraph 5 shall be
re-solved between you and such third party. You hereby agree to submit to
the jurisdiction of the courts of your domicile and to the courts of
[location of registrar]. You may be subject to the jurisdiction of other
courts as well. We shall have no obligation to, nor shall we, participate in
any such dispute in any way, except as provided in Paragraph 8. You hereby
agree that you shall not name us as a party to such proceeding. In the event
that we are named as a party in any such proceeding, we reserve the right to
raise any and all de-fenses deemed appropriate, and to take any other action
necessary to defend ourselves, regardless of the terms of this Policy.

Comment: Which disputes would those be? I seem to be missing something.
Also, is it fair for a domain holder to be forced to submit to the
jurisdiction of the registrar when the challenger does not?

7. Notice. You must promptly notify us in writing if your Domain Name
regis-tration is made the subject of a pending court action, arbitration or
adminis-trative proceeding.

Comment: Why?

8. Transfers.

a. Transfers to a Third Party. You may not transfer your Domain Name
registration to another party (i) during a pending administrative proceeding
brought pursuant to Section 5 or (ii) during a pending court proceeding or
arbitration commenced regarding your Domain Name, unless the party to whom
the Domain Name registration is being transferred agrees, in writing, to be
bound by the decision of the court or arbitrator. We reserve the right to
revoke the transfer of a Domain Name registration to a third party if this
sub-paragraph has been violated.

b. Transfer to Another Registrar. You may transfer administration of your
Domain Name registration to another registrar during a pending court action,
arbitration or administrative proceeding, provided that (i) the Domain Name
registration shall continue to be subject to the pending proceedings in
accordance with the terms of this Policy; and (ii) the new registrar has a
dispute policy under which it will honor any decision rendered in any such
proceeding. In the event that you transfer a Domain Name registration to us
during the pendency of a court action, arbitration or administrative
proceeding, such dispute shall be subject to the dispute policy of the
registrar from which the Domain Name registration was transferred.


9. Deposit of Registry Certificate. In the event of a court proceeding
con-cerning your Domain Name registration, we will, at your request or at
the re-quest of a complainant, deposit control of the Domain Name
registration into the registry of a court where the action is pending. We
will do this solely by supplying you or the complainant with a registry
certificate for the Domain Name registration for deposit with the court.

10. Modifications. You hereby acknowledge and agree that we may modify or
amend this Policy from time to time. We will post our revised Policy at
[__________] at least ten (10) calendar days before it becomes effective.
Unless this Dispute Policy has already been invoked by either you or a
com-plainant, in which event the version of the dispute policy in effect at
the time it was invoked will apply to you until the dispute is over, all
such changes will be binding upon you with respect to any Domain Name
registration dis-pute, whether the dispute arose before, on or after the
effective date of our modification. In the event that you object to a change
in this Policy, your sole remedy is to abandon or transfer your Domain Name
registration to an-other registrar, provided that in the event of such
transfer, you will not be en-titled to a refund of any fees you paid to us.
The revised Policy will apply to you until you cancel or transfer your
Domain Name registration.

Comment: This is even worse than NSI's policy. They at least give you 30
calendar days before it becomes effective. 10 days is definitely not enough.