[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
comments on alternate dispute policy
As I describe below this policy has little or no particle value. The main
reason for this policy is to give domain hijacker ammunition to scare people
out of their domains. When I judge any such policy I look at it from the
point of view of what would happen in real life when a registrant who knows
nothing about the law, domain disputes, etc. and probably never heard of the
Lanham Act. How will they be affected when they receive notices of pending
actions, claims of "you cannot name us in a lawsuit because the contract
says so," etc. The possibility if unfair trade practices was already raised
by someone else.
--
"(a) the statements that you made in your Registration Agreement are
complete and accu-rate; (b) to 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 do not check to verify, and it is
your responsibility to determine, whether your domain name registration
infringes or violates someone else's rights."
---
-The paragraph seems moot to me. To make the determination of "registering
the domain name for an unlawful purpose" and "use the domain name in
violation of any applicable laws or regulations" and "infringe upon or
otherwise violate the rights of any third party" can only be determined by a
court action which would probably result in a court order concerning the
domain. Since the policy sates registrars will follow court orders I see no
practical value of this paragraph other than to allow reverse domain
hijackers to make phony claims to scare the registrant. I suggest this
paragraph be removed completely.
---
"2. Evidence of Registration and Use in Bad Faith. For the purposes of
Paragraph 4(a)(iii), 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 who is the owner of the trademark or
ser-vice mark or to a competitor of that complainant, for valu-able
consideration; or (ii) your attempt to attract, for finan-cial gain,
Internet users to your website or other on-line location, by creating
confusion with the trademark or ser-vice mark of the complainant; or (iii)
your registration of a domain name in order to prevent the owner of the
trademark 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; or (iv) your registration of a domain name in order to disrupt the
business of a competi-tor."
---
Who investigates this? Who collects and evaluates the information? Who
makes the determination of bad faith (which is a proceeding in itself)? Is
a private investigator to be hired to travel around the world collecting
information such as registration patterns, determining intent when the
domain is registered, etc.
--
"You are required to submit to a mandatory administrative proceeding in the
event that a third party (a “complainant”) asserts to the applicable
Pro-vider, in compliance with that Provider's rules of procedure,"
--
Why is there no procedure to determine if the complaint has merit before the
"mandatory" procedure is enacted?
--
"except when an Administrative Panel determines in its sole discretion not
to have its decision published."
--
absolutely unacceptable for obvious reasons.
---
"If an Administrative Panel decides that your domain name registration
should be cancelled or transferred, we will wait ten (10) calendar days
after being in-formed by the applicable Provider of the Administrative
Panel's decision before implementing that decision. We will then implement
the decision unless we have received from you during such ten (10) calendar
day period a copy of a complaint..."
---
In a situation of a Federal lawsuit being filed the person has 60 days to
file an answer. Why should people have to file in 10 days? Often these are
people who have no legal experience. This time limit is unacceptable.
--
"We will not participate in any way in any dispute between you and any party
other than us re-garding the registration and use of your domain name. You
shall not name us as a party or otherwise include us in any such
pro-ceeding. 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. "
--
Absolute nonsense. I would be more likely to file suit just for putting in
such a stupid clause. My suggestion in these cases is to immediately file
suit against ICANN and DOC for implementing any policy without complying
with the terms of the cooperative agreement.
--
"1. Transfers of a Domain Name to a New Holder. You may not transfer your
domain name registration to another holder (i) during a pending
administrative proceeding brought pursuant to Paragraph 4 or for a period of
fifteen (15) calen-dar days after such proceeding is concluded; or (ii)
during a pending court proceeding or arbitration commenced regard-ing 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 cancel any transfer of a domain name
registration to another holder that is made in violation of this
subparagraph."
--
Again nonsense. Why should some complainant be able to tie up a domain
prior to decision. In court the complainant has the burden of filing a
motion.
--
"We reserve the right to modify this Policy at any time. We will post our
revised Policy at <URL> at least thirty (30) calendar days before it becomes
effective."
--
Insufficient. All registrants should be notified directly of any pending
change.
---
"POLICY SIGNATORIES
America Online
Network Solutions, Inc.
Register.com
APPROVED AND CONSENTED TO
World Intellectual Property Organization"
--
This says it all! I should have known that the well-known domain thief AOL
was involved.
--
Put this policy where it belongs... in the garbage can.
Russ Smith
http://consumer.net