Comments on UDRP draft of 9/29/99

[Ellen Rony <erony@marin.k12.ca.us>]

To: The ICANN Board
Subject:        Uniform Domain Name Dispute Resolution Policy (Sept. 29,
1999) <http://www.icann.org/udrp/udrp-policy-29sept99.htm>


My comments below should not indicate either support for a Mandatory
Administrative Proceeding nor for the process in which this draft was
prepared.  I have already learned that complaints about process are
considered by some members of the ICANN board to be "insubstantive", so my
comments will proceed, substantively, paragraph by paragraph below on what
I believe will be the inevitable, unanimous adoption by the ICANN board of
the UDRP draft text as posted.

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2. Your Representations. By applying to register a domain name, or by
asking us to maintain 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 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.

	ER comment:  The representations to which a registrant must attest
are overly vague and broad.  There is no way possible that a person can
attest whether a domain name will "violate the rights" of any third party.
Which rights are these?  One could claim these include copyrights, trade
name rights, but such things are not the purview of ICANN and do not belong
in this policy.

	It is further impossible to discern whether the use of a domain
name violates any applicable laws or regulations.  Words have different
meanings in different countries.   Is it unlawful to register domain names
such as GUNSFORSALE.COM   or UNDERAGELIQUOR.NET, if the names themselves
suggest illegal activity in certain countries?  Is it unlawful for a minor
to register a domain name for the purpose of compiling a list of premium
wine preferences?  Unless ICANN is willing to provide a listing of all
possible laws and regulations worldwide that would be incorporated under
this provision, it is a representation which few registrants can credibly
make.

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3. Cancellations, Transfers, and Changes.. . We may also cancel, transfer
or otherwise make changes to a domain name registration in accordance with
the terms of your Registration Agreement or other legal requirements.

	ER comment:  Under what specific circumstances do the terms of the
Registration Agreement justify cancellation, etc. of a registration.  The
sentence above could easily be used to support abusive and unfair
cancellation, transfer and cancellation practices.

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4. Mandatory Administrative Proceeding.

	ER comment:  It is unfortunate that ICANN has chosen to overlook
the consensus of the IFWP, which concluded at three of the four
international meetings that mandatory UDRP was not preferred but that a
variety of alternatives should be explored.  Every one of the IFWP meetings
devoted considerable focus on identifying consensus points on a number of
issues, including this one.

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4b. Evidence of Registration and Use in Bad Faith.
(ii) you have registered the 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;

	ER comment:  It would be helpful to specifically describe what
constitutes a "pattern of conduct"?   Is it the registration of x domain
names that are identical to trademarks owned somewhere in the world?  Is it
the propagation of the domain name in dispute on a number of search engines?

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4b.(iv) by using the domain name, you have intentionally attempted to
attract, for commercial gain, Internet users to your web site or other
on-line location, by creating a likelihood of confusion  with the
Complainant's mark as to the source, sponsorship, affiliation, or
endorsement of your web site or location or of a product or service on your
web site or location.

	ER comment:  The likelihood of confusion must rest on examination
of the CONTENT of the website, not on the name alone.  This is the linchpin
of the entire domain names as trademarks debates.  Until one examines the
contextual use of a name, it is impossible to ascertain whether there is a
likelihood of confusion as to the source, sponsorship, affiliation, etc.
That is why the USPTO permits the registration of IDENTICAL trademarks.
They can co-exist, so long as they refer to different products or services.
Since the TLD .COM doesn't provide sufficient information to distinguish
one use of a name from another, there can be no likelihood of confusion
until the content of the website is examined.  The opportunity for reverse
domain name hijacking would be reduced considerably if the proof of bad
faith use of a domain name required a preliminary exploration of the
contextual use, not merely invoking the name that  trademark owners believe
they have superior rights to use on the Internet.  As a prophylactic
against reverse domain name hijacking, this UDRP doesn't go deep enough.
It does not consider the tremendous disruption of a dispute proceeding upon
a legitimate registrant.  It doesn't consider the likely differential
between the financial resources of trademark owners and many independent
registrants.

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4h. Our Involvement in Administrative Proceedings. We do not, and will not,
participate in the administration or conduct of any proceeding before an
Administrative Panel. In addition, we will not be liable as a result of any
decisions rendered by the Administrative Panel.

	ER comment:  I am not an attorney, but I do not understand how the
organization that forces registrants to use a  Mandatory Administrative
Proceeding can then refute liability for any results that ensue.  If the
results are inconsistent for similar fact patterns or illogical, to whom
can the disputants complain?

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4i. Remedies. The remedies available to a complainant pursuant to any
proceeding before an Administrative Panel shall be limited to requiring the
cancellation of your domain name or the transfer of your domain name
registration to the complainant.

	ER comment:  This provides no penalty against complainants who have
deep pockets and little to lose but the cost of ADR to file an unwarranted
proceeding.  Nor does it reimburse a successful complainant for costs
advanced in this proceeding.  The remedies must include the opportunity to
reallocate the  costs advanced.

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4j. Notification and Publication. The Provider shall notify us of any
decision made by an Administrative Panel with respect to a domain name you
have registered with us. All decisions under this Policy will be published
in full over the Internet, except when an Administrative Panel determines
in an exceptional case to redact portions of its decision.

	ER comment:  It is important that the decisions will be made
public, so that registrants and potential complainants can see how disputes
that match their fact pattern were handled.  What would constitute an
"exceptional case" under this provision?  I cannot think of one and
recommend that this exception be stricken.

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4k.  Availability of Court Proceedings. The mandatory administrative
proceeding requirements set forth in Paragraph 4 shall not prevent either
you or the complainant from submitting the dispute to a court of competent
jurisdiction for independent resolution before such mandatory
administrative proceeding is
commenced or after such proceeding is concluded.

	ER comment:  The word "mandatory" means "required" and
"obligatory".  Since submitting the dispute to court is available as an
alternative, the word "mandatory" is improperly applied.  The proceeding is
only mandatory in cases when the complaint has not been submitted to court
before commencing such a proceeding.  In other words, the administrative
proceeding is not (and should not be) mandatory but conditional.

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4k. . . . We will then implement the decision unless we have received from
you during that ten (10) business day period official documentation (such
as a copy of a complaint,
file-stamped by the clerk of the court) that you have commenced a lawsuit
against the complainant in a Mutual Jurisdiction regarding your right to
use your domain name.

	ER comment:  As others have pointed out, ten days is not sufficient
time for the losing party to collect documents, locate an attorney, compose
a complaint and commence litigation.  To suggest anyone can do this in such
sort a period of time is to ignore the realities of life's daily personal
and professional obligations outside this realm.

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4k. . . If we receive such documentation within the ten (10) business day
period, we will not implement the Administrative Panel's decision, and we
will take no further action, until we receive (i) evidence satisfactory to
us of a resolution between the parties; (ii) evidence satisfactory to us
that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an
order from such court dismissing your lawsuit or ordering that you do not
have the right to continue to use your domain name.

	ER comment:  This provision is vague. What evidence would be
satisfactory?  Notarized non-disclosure settlement agreement?
Court-stamped documents?   Without specific identification of which
documents are satisfactory to prevent implementation of a panel decision, a
party to a dispute might waste valuable time collecting and submitting the
wrong material, which will lead to further delay and discord.

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6. Our Involvement in Disputes. We will not participate in any way in any
dispute between you and any party other than us regarding the registration
and use of your domain name. You shall not name us as a party or otherwise
include us in
any 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.

	ER comment:  Provision #3 which allows a registrar to cancel,
transfer or otherwise make changes to a domain name registration in
accordance with the terms of your Registration Agreement or other legal
requirements, coupled with this indemnity clause, provides registrars with
potential carte blanche control over any domain name registration.
Registrants should not be required to waive rights to which they are
entitled, such as holding a registrar responsible for discriminatory,
inconsistent, and unfair registration practices.

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9.  Policy Modifications. . . In the event that you object to a change in
this Policy, your sole remedy is to cancel your domain name registration or
transfer your domain name registration to another registrar, provided that
in the event of a 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 cancel
or transfer your domain name registration.

	ER comment:  In other words, a registrant is vulnerable to a
dispute without any time limitation, from any corner of the world, and must
submit to mandatory administrative resolution or go to court.  Further,
this UDRP policy can be subsequently changed without the registrants'
input, adding limitations and obligations not listed before.  And those who
do not like the changes can take their business elsewhere and lose all the
time and money invested in a site and communication with a particular
domain name.  This UDRP contains no text anticipating  domain registrants
grievances against registrars, no procedure against a registrar's abusive
practices or onerous subsequent policy changes, short of take your business
elsewhere.  This approach reminds me of the rental agreements that were
circulated 25 years ago before renters fought for some principles that
protected them from the abusive practices of some apartment owners.

	IMHO, this whole territory is beyond the realm of technical
coordination of Internet names and addresses and ICANN has no charter to
mandate individual domain registrants to adhere to such a policy.  Those
whose registrations preceded the establishment of ICANN may find this UDRP
particularly intrusive.

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Ellen Rony                         ____             The Domain Name Handbook
Co-author		       ^..^     )6     http://www.domainhandbook.com
+1 (415) 435-5010    	       (oo) -^--                     ISBN 0879305150
Tiburon, CA                        W   W               erony@marin.k12.ca.us
	   DOT COM is the Pig Latin of the Information Age
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