[wg-a] 2nd try: AOLregister.com proposed DRP

[Amadeu Abril i Abril <Amadeu@nominalia.com>]

Hi WG Aers,

[I am resending this mail, in text format, as the previous one with the Word
file has not reached the list. Is there any size limit for posting to the
list, Elisabeth?]

PSA mail form AOL/register.com proposing a model DRP or registrars.

Plese note that they have expressely requested that you don't send individual
comments on this DRP-.Please send your coments to me instead. I will
consolidate them and forwrad the whole thing to AOL/register.com (if you read
the mail you will understand why).

Just a few comments from my own.

* The proposed DRP is perfectly sound. This is not s surprise as it is an
adaption form wht WIPO has proposed.

* In this sense, the exerceises seems perfectly costly and unnecessary to me:
WIPO proposed DRP is still far superior to this new version

* Besides taking off the "famous tradmarks" part (and we all agree on this)
one of the olther few changes is that they adopt a "arbitration" language. But
it is rahter confusing: it is not mandatory; it does not prevent resort to
courts.... In my legal tradition this is NOT arbitration. But using the word
(worngly using it) might create some problems, as many legal systems are
rahter skeptical regarding arbitrtation on IPRs.

* Uniformity, even if all registrars adopted this DRP is difficult to ahieve.
As it is consolidation of similar claims agaisnt the same registrant (as the
policy clearly states that it is differnet and compeltely independnet form any
other registrar DRP).

* It fails to say anythign about implementation. And this is a crucial issue.

Besides that, what really worries me is that we ar now facing an effort to
re-write what has been done., I fai l ot see what improvement this DRP brigns
and the way it has ben rpesented )see message below) compromises the
likelihood that most registrars adopt it, also because it ahs been kept in
secret during over a month, desptie all of our efforts.

And, above all, remember that your role within this group is focusing in
providing answers to orur working questions. July 7 is approaching and we
REALLY need some extra energy. Don't spend much time on this lateral things,
please. I am sending it just FYI and to let all of you better understna what
is happening within the Registrars group.

Best regards,

Amaedu


 Subject: 
         [registrars] Proposed Domain Name Dispute Policy
    Date: 
         Fri, 18 Jun 1999 22:49:20 EDT
   From: 
         JIMBRAMSON@aol.com
     To: 
         registrars@dnso.org, testbed@registrar.icann.org
     CC: 
         Louis_L._Touton@jonesday.com, rforman@register.com,
lgaviser@register.com, rrodin@skadden.com,
         slevi@skadden.com



To all Testbed and Post-Testbed Registrars:

Attached please find a draft Domain Name Dispute Policy that was prepared by 
our counsel, Skadden, Arps, Slate, Meagher & Flom.  The draft is based upon 
Annex IV to the Final Report on the WIPO Domain Name Process, but is written 
in an informal style intended to be more accessible to the average consumer.  
In particular, the attached draft policy incorporates WIPO's concepts 
regarding arbitration for the narrow category of disputes relating to abusive 
registration and the limited remedies available through the arbitration 
process.  This draft policy does not include WIPO's suggestions regarding 
exclusions of "famous marks."  Since the use of "famous mark" exclusions is 
still a hotly contested issue, we believe that WIPO's proposal should not be 
adopted until there is a broader consensus on this issue.  

As you know, ICANN has passed a resolution that there should be a unified 
domain name dispute policy.  We are therefore soliciting comments on this 
draft from the other accredited registrars.  In order to complete this policy 
for use by the testbed registrars as soon as possible, we are asking that all 
comments be provided to us no later than Friday, June 25.  We are also asking 
that each registrar submit no more than one set of comments, to streamline 
the process.  All comments should be sent to RRODIN@SKADDEN.COM and 
SLEVI@SKADDEN.COM.  Skadden will then circulate a revised policy 
incorporating comments received from the other registrars, and identifying 
any points not incorporated and the reason for not including them (e.g., in 
the event of disagreement among registrars).

Please note that AOL and register.com have paid for the creation of this 
draft policy without any contribution from any other registrar.  Since we are 
opening up this work product to solicit your feedback with the goal of 
developing a policy that will be acceptable to and uniformly adopted by all 
of the registrars, we are asking that all participating registrars contribute 
to the work Skadden will undertake going forward to review and incorporate 
your respective comments.  We are asking that each registrar who submits 
comments or who expects to adopt the policy that is being created, contribute 
$1,000 towards this effort.  Payments should be payable to America Online, 
Inc. and sent to Jim Bramson, America Online, Inc., 22000 AOL Way, Dulles, VA 
20166.  Once the project is completed, if the registrars have collectively 
contributed more than necessary to cover Skadden's bills, we will provide pro 
rata reimbursements, or at the contributors' request, donate the excess funds 
to the Registrar Constituency.

Please contact us with any questions you may have.  Thank you for your 
cooperation.

Jim Bramson (AOL)
Rich Forman (register.com)

*********

 DRAFT - FOR DISCUSSION PURPOSES ONLY

OUR DOMAIN NAME DISPUTE POLICY 


 1.	Purpose.  This Domain Name Dispute Policy (the "Policy") sets forth the
terms and conditions that you agree to adhere to (a) when registering and
using an Internet domain name ("Domain Name"); and (b) in the event of a
dispute over the registration and use of the 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, and this Policy is incorporated into the
terms of your Domain Name Registration Agreement ("Registration Agreement").  
Please remember that we are one of a number of Domain Name registrars, and
this Policy applies only to Domain Names registrations that are currently
being administered by us, even if you originally registered the Domain Name
with another registrar.  Similarly, this Policy does not apply to Domain Name
registrations that are being administered by other registrars even if you
originally registered the Domain Name with us.

2.	What we do.  We submit applications to register and renew, and also
administer, "second-level" Domain Names in the .COM, .ORG, and .NET top level
domains.  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
"brand.com,"  the term "brand" is the second level Domain Name.  We submit
registration applications and renewals for second-level Domain Names to the
appropriate domain name registry 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.  Accordingly, under this Policy we require you to make certain
representations to us that you are entitled to use the Domain Name that you
have selected.  Please note that if you select a Domain Name that is another
party's trademark or 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 or other judicial or administrative body could
instruct us to cancel your Domain Name registration and/or transfer it to
another person or entity.

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 to us that (a) the then-current 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 interfere with,
infringe upon or otherwise violate the rights of any third party anywhere in
the world; (c) you are not registering the Domain Name for an unlawful
purpose; and (d) you will not use the Domain Name unlawfully. 

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

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

b.	a temporary or final order from a court of competent jurisdiction requiring
us to do so;

c.	a final, non-appealable decision of an arbitrator in any arbitration in
which you were a party requiring us to do so;

d.	an order from a legislative or administrative body, including the Internet
Corporation for Assigned Names and Numbers ("ICANN") requiring us to do so;

e.	a breach by you of the Registration Agreement, subject to our sole
discretion; and/or;

f.	for any reason in our sole discretion, upon ten (10) calendar days prior
written notice.

5.	Mandatory Arbitration.  You hereby agree to submit to non-binding
arbitration before one of the internationally recognized arbitration bodies
listed on Exhibit A hereto (this Exhibit may be changed from time to time by
us, in our sole discretion), in the event that a complainant asserts that: (a)
your Domain Name is identical or misleadingly similar to a trade or service
mark in which the complainant has rights; (b) you have no rights or legitimate
interests in respect of the Domain Name registration;  and that (c) your
Domain Name has been registered and is used in bad faith.  For the purposes of
this Paragraph 5, the following, in particular, shall be evidence of the
registration and use of a domain name in bad faith:  (w) an offer to sell,
rent or otherwise transfer the Domain Name to the owner of the trade or
service mark, or to a competitor of the owner of the trade or service mark,
for valuable consideration;  (x) 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;  (y) 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; (z) the
registration of your Domain Name in order to disrupt the business of a competitor.

6.	Mandatory Arbitration Proceeding and Award.  Each of the arbitration bodies
listed on Exhibit A (each, an "Arbitration Administrator") shall administer an
arbitration proceeding pursuant to Paragraph 5 in accordance with its own
rules of procedure. [Note: Consider attaching such rules as exhibits]  The
remedies available to a complainant pursuant to any proceeding before an
Arbitration Administrator shall be limited to either the cancellation of your
Domain Name registration or a transfer of your Domain Name registration to the
complainant.  An Arbitration Administrator may also determine the allocation
of the costs of the arbitration proceeding as between you and the complainant.
We do not, and will not, participate in or otherwise have any role in the
administration or conduct of any proceeding before an Arbitration
Administrator.  In addition, we will not be responsible for any (i) decisions
rendered under the auspices of the Arbitration Administrator or (ii) damages
arising out of (X) the arbitration proceeding or (Y) the implementation of the
decision rendered under the auspices of the Arbitration Administrator.  The
results of any arbitration proceeding shall be published over the Internet,
unless you or the complainant can demonstrate valid cause why they should not
be.  The mandatory arbitration requirements in Paragraphs 5 and 6 shall not
prevent either you or the complainant from proceeding to a court of competent
jurisdiction to present your claims.

7.	All Other Disputes and Litigations.  Disputes between you and any third
party regarding your Domain Name that are not subject to the mandatory
arbitration provisions of Paragraph 5 shall be resolved between you and such
third party.  We shall have no obligation to, nor shall we, participate in any
such dispute in any way, except as provided in Paragraph 7.  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 defenses deemed appropriate, and to take any other action
necessary to defend ourselves, regardless of the terms of this Policy.

8.	Deposit of Registry Certificate.  In the event of a litigation or
arbitration concerning your Domain Name, we will, at your request or at the
request of a complainant, deposit control of the Domain Name registration into
the registry of a court or arbitration panel where an action is pending
concerning the Domain Name.  We will do this solely by supplying you or the
complainant with a registry certificate for the Domain Name for deposit with
the court or arbitrator(s). You agree to reimburse us for all costs that we
incur in connection with any actions that we take pursuant to this paragraph
7. 

9.	Payment of Fees During a Dispute Proceeding.  You are responsible to pay
all registration, administration, renewal and other fees that we may impose
from time to time during the pendency of any Domain Name Arbitration,
litigation or other proceeding regarding your Domain Name, even if you have
been ordered not to use the Domain Name during that time.

10.	DISCLAIMER.   YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY LOSS OF YOUR
DOMAIN NAME REGISTRATION, YOUR INABILITY TO USE A DOMAIN NAME, YOUR LOSS OF
DATA OR FOR ANY INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS)
REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.   IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY UNDER THIS
POLICY, YOUR REGISTRATION AGREEMENT OR ANY TRANSFER AGREEMENT EXCEED FIVE
HUNDRED ($500.00) DOLLARS.   

11.	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.  All
such changes will be binding upon you with respect to any Domain Name dispute,
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 another
registrar, provided that in the event of such transfer, you will not be
entitled to a refund of any fees you paid to us.  The revised Policy will
apply to you until you transfer your Domain Name registration.

12.	Indemnity.  You hereby agree to defend, indemnify and hold harmless [name
of Registrar] and our officers, directors, employees and agents (collectively,
the "Indemnified Parties"), for either any costs, including reasonable
attorneys' fees, and/or any loss or damages awarded by a court of competent
jurisdiction, resulting from any third party claim, action, or demand arising
out of or related to the use or registration of your Domain Name.  Such claims
shall include, without limitation, those based upon trademark or service mark
infringement, trade name infringement, dilution, tortious interference with
contract or prospective business advantage, unfair competition, defamation or
injury to business reputation.  We recognize that certain educational and
governmental entities may not be permitted by law or under their
organizational documents to provide complete indemnification.  In these cases
you must notify us in writing within seven (7) calendar days of your Domain
Name being registered.  Upon receiving appropriate proof of such restriction,
we may either provide an alternative provision for you or refuse to register
the Domain Name you selected.  

13.	Notices.   All notices permitted or required under this Policy shall be in
writing and shall be delivered by personal delivery, courier delivery,
facsimile transmission, e-mail supported by a confirmation of receipt by the
intended recipient, and/or by first class mail, and shall be deemed given upon
delivery, confirmed transmission, or three (3) calendar days after deposit in
the mail, whichever occurs first.   Notices shall be sent to you at the
contact address listed in your Domain Name application.

14.	Non-Agency.   Nothing contained in this Policy shall be construed as
creating any agency, partnership, or other form of joint enterprise between
the parties.   

15.	Non-Waiver.   Our failure to require you to perform any provision in this
policy shall not affect the full right to require such performance at any time
thereafter; nor shall our waiver of a breach of any provision hereof be taken
or held to be a waiver of the provision itself.   

16.	Breach.   Your failure to abide by any provision under this Policy may be
considered by us to be a material breach and we may provide a written notice,
describing the breach, to you.   If, within seven (7) calendar days of the
date of such notice, you fail to provide evidence, which is reasonably
satisfactory to us, that you have not breached your obligations, then we may
cancel your  Domain Name registration.

17.	Invalidity.   In the event that any provision of this Policy shall be
unenforceable or invalid under any applicable law or be so held by applicable
court decision, such unenforceability or invalidity shall not render this
Policy unenforceable or invalid as a whole.   We will amend or replace such
provision with one that is valid and enforceable and which achieves, to the
extent possible, our original objectives and intent as reflected in the
original provision.   

18.	Entirety.   This Policy, as amended, and the current Registration
Agreement together constitute the complete and exclusive agreement between us
and supersede and govern all prior proposals, agreements, or other communications.