e. The registrar would register SLDs to SLD
holders only for fixed periods. At the conclusion of the registration
period, failure to pay a
renewal fee within the time specified in a second notice or reminder
would result in cancellation of the registration.
DADNO comment:
(e. This is harsh and not conducive to
investing in an on-line business. Cancellation of a Domain Name,
especially if this would involve permanent loss, due to other other
parties "grabbing" the name on cancellation, will wipe
out all goodwill and connections, links, etc. of an on-line business. It
is , in fact, the death of such a business.
Domain Name registrants need a specifically formulated protection that
will ensure that they still "own" a name, even if payment has
lapsed due to unforeseen circumstances. This protection should follow the
spirit of laws that are made to protect property owners from
confiscations due to non-payment of property taxes. It would be
better to provide specifically for 25 and even 50 year
registrations.)
f. The registrar would not insert or renew
any SLD name in any registry for which the registrar is accredited in a
manner contrary to a list or
specification of excluded SLD names that is in effect at the time of
insertion or renewal.
DADNO comment:
(f. Oppressive. Once a Domain Name is
registered and active on-line, the Owner should be reasonably secure in
the knowledge that he can use the Domain well into the future. His rights
to the name in this respect should be akin to acquired property rights. A
"moving target" list of excluded SLD names would nullify
reasonable Name security)
g. The registrar would require all SLD holders to enter an electronic or
paper registration agreement with the registrar including at least
the
following provisions:
i. The SLD holder shall be required to provide to the registrar accurate
and reliable contact details and promptly to update them
during the term of the SLD registration, including: the full name, postal
address, e-mail address, voice telephone number, and fax
number if available of the SLD holder; name of authorized person for
contact purposes in the case of an SLD holder that is an
organization, association or corporation; and the data elements listed in
IV.3.a.ii, iii, and vi-ix above.
The provision of inaccurate or unreliable information or the failure to
promptly update it shall constitute a material breach of the
SLD holder-registrar contract and be a basis for cancellation of the SLD
registration.
DADNO comment:
(i. Too harsh: minor errors or mistakes made
in good faith, should not lead to cancellation. If the SLD has been in
use, for, say, a period of 3 months, incorrect information should no
longer be a ground for cancellation. )
An
SLD holder (such as an ISP) may provide its own contact information in
connection with an SLD the use of which it intends
to license to a third party who wishes to remain anonymous, provided that
the technical, administrative, and zone contact
information provided is adequate to facilitate timely resolution of any
problems that arise in connection with the domain.
ii. The registrar would provide notice to each SLD holder-customer
stating:
A. The purposes for which any data collected from the applicant about any
identified or identifiable natural person
("Personal Data") are intended;
B. The intended recipients or categories of recipients of the data
(including the registry administrator and others
who will receive the data from the registry);
C. Which data are obligatory and which data, if any, are voluntary; and
D. How the data subject can access and, if necessary, rectify the data
held about them.
iii. The SLD holder shall consent to the data processing referred to in
section IV.9.g.ii.
iv. The SLD holder shall warrant that it has provided notice equivalent
to that described in Section ii above to any third-party
individuals whose Personal Data are supplied to the registrar by the SLD
holder, and that the SLD holder has obtained consent
equivalent to that referred to in Section iii above of any such
third-party individuals.
v. The registrar shall agree that it will not process the Personal Data
collected from the SLD holder in a way incompatible with
the purposes and other limitations about which it has provided notice to
the SLD holder in accordance with Section ii, above.
vi. The registrar shall agree that it will take reasonable precautions to
protect Personal Data from loss, misuse, unauthorized
access or disclosure, alteration, or destruction.
vii. The SLD holder shall represent that, to the best of the SLD holder's
knowledge and belief, neither the registration of the
SLD name nor the manner in which it is directly or indirectly used
infringes the legal rights of a third party.
viii. For the adjudication of disputes
concerning or arising from use of the SLD name, the SLD holder shall
submit, without
prejudice to other potentially applicable jurisdictions, to the
jurisdiction of the courts (a) of the SLD holder's domicile and (b)
where the registrar is located.
DADNO comment:
( Oppressive, especially in view of section
10. The courts of the SLD Holder's domicile should be the jurisdiction of
choice. In practice, for SLD holders domiciled outside the US, litigation
in the US will never be a realistic option--they will be forced to
abandon the DN without just cause.)
ix. The SLD holder shall agree that its
registration of the SLD name shall be subject to suspension,
cancellation, or transfer as a
result of any ICANN procedure, or by a registrar or registry
administrator procedure approved by ICANN, (a) to correct
mistakes by the registrar or registry administrator in registering the
name or (b) for the resolution of disputes concerning the
SLD name.
DADNO comment:
(Oppressive. Suspension, cancellation or
transfer to another party will be entirely at the whim of the
registrar. Mistakes by the registrar should, after a reasonable
period of time, either be recognized as a new DN right, or the
registrant who has been mistakenly issued a DN, and the registrant who
should have been issued with the DN, should be compensated for damages
upon cancellation or
transfer.)
10. Domain Name Dispute Resolution. During
the term of the accreditation agreement, the registrar would undertake to
have in place a policy and
procedure for
resolution of disputes concerning SLD names. In the event that ICANN
establishes a policy or procedure for resolution of its disputes
that
by its terms
applies to the registrar, the registrar would adhere to the policy or
procedure.
DADNO comment:
(This is easier said than done. The
registrar is not a Court of Law and cannot be expected to rule in full
consideration of all aspects of a DN dispute. This will lead to
"rough justice" that will invariably work in favour of
aggressive TM owners who are after existing Domain names, even in cases
where there is no infringement or dilution.)
My overriding concern with these policy guidelines is that they will be
taken up "as is" by TLD registries and registrars who will
welcome such one-sided contracts.
ICANN should leave the formulation of such detailed policies to the DNSO
, or at least wait untill it has a democratically elected Board in which
DN registrants will have a voice.
Joop Teernstra LL.M.
Democratic Association of Domain Name
Owners