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Comments on Dispute Policy concerning ICANN proposal
I am a attorney in a small firm that concentrate in intellectual property
with trademarks taking approximately 50% of our practice. While I promote a
uniform policy concerning domain name disputes, I have some reservations
concerning the policy as proposed.
First, the language as proposed seems to require that mandatory
administrative proceedings are only required when "your domain name has been
registered and is used in bad faith". This require that the intent of the
registrant be known to invoke these proceedings. This burden is too high,
especially given the language of 4(b). I agree with the various suggestions
to change the "and" to "or" concerning 4(a)(iii).
Second, a pattern of conduct should be used to given rise to punitive
remedies and not to establish liability. By having pattern, the first
offense may go unpunished. Therefore, I recommend that this language
referring to a pattern be stricken.
Third, there is a rather large loophole to avoid consequences by
"demonstrating preparations to use." We are all familiar with the "Under
Construction" page which has the "please visit this site soon". Such a
loophole allows cybersquatters to merely periodically edit the site, each
time inching to a fraudulently "intent to use".
Fourth, even larger loophole by allowing the "nickname" section. I
personally know an individual known as Mr. IBM who, I contend, could not use
ibm.com for his computer consulting services. Although I have strong
reservations concerning section c(ii), I believe that the various comments
against this section without amendment are sufficient.
Fifth, I have read some concerns with the notification provisions of the
Accompanying Rules, specifically Rule 2(a). I feel that these rules are
adequate with some additions. I feel a policy similar to the Designated
Agent for Copyright Infringement would suffice. For example, have a subject
message such as DOMAIN DISPUTE COMPLAINT be automatically forwarded to the
ISP which is than automatically forwarded to the domain name owner and this
would constitute notice. While I have not completely thought out this
system, it seems that the technology would allow actual notice be performed
by the ISP without an undue burden, especially since this reduced or
eliminates the liability of the ISP. I have no doubt that the commercial
elements will keep the ISP in business for a while.
Douglas W. Kim
CORT FLINT, P.A.
Voice: (864) 232-4261
Fax: (864) 232-4437