The fact of the matter is that we are all users Debbie: trademark owners, Registrants and non-registrants. We are first users and then everything else. The fact that a Registrant has registered a domain name does not mean that he or she has also unlimited or easy access (you can ask Alex on this). It just means that he or she registered a domain name.
You say that "when a person registers a domain name, he should understand the decision he/she is making". What do you mean? What exactly should Registrants understand? The fact, for example, that even if a Registrant uses a trademarked term within a bigger name as part of his or her free speech, they will lose it under the UDRP? There is really nothing to understand in such instances - it is nominative use and no one talks about nominative use in the UDRP. Trademark owners want users and Registrants to believe that any reference to a trademark term is infringement.
Thankfully, courts do not agree with this: here is an excellent decision on the boundaries of trademark protection in the context of domain names. I have blogged about it here: http://www.komaitis.org/1/post/2010/07/the-lessons-the-trademark-community-should-learn-from-judge-kozinskis-ruling-on-nominative-use.html
And you can get the decision here: http://pub.bna.com/eclr/0755344_070810.pdf.
KK
On 23/07/2010 00:16, "Debra Hughes" <[log in to unmask]> wrote:
The problem I had with Konstantinos' mention of "user" in his email was that he said: "For many users the Internet is still not a given" in the context that certain areas have limited access to the Internet. But my point was that a registrant had access to the Internet when they registered the domain and to now make the argument that more time is needed to respond based on that premise seems unclear and difficult to accept.
When a person registers a domain name, he should understand the decision he/she is making. The ICANN community (BD, Staff SGs, SOs) should be responsible for making that information available to all sorts of potential registrants - like small NGOs or corporations and individuals in emerging markets. Of course an individual registrant may not plan a legal defense 30 days before a registrant decides to register a domain name - that is not what I was suggesting at all. My point was that I don't think it is unreasonable to expect the registrant to be accountable for understanding the potential consequences associated with that decision. The concept of justice and fairness are important, but it should flow both ways. I agree that large, medium and small entities should be held accountable for their actions and should not abuse the system. I don't think it is unreasonable to ask individuals to are acquiring a valuable resource to also be accountable for understanding the policies, issues and rules of the DNS associated with that acquisition - it just seems fair.
Debbie
________________________________
From: NCSG-NCUC [mailto:[log in to unmask]] On Behalf Of Milton L Mueller
Sent: Thursday, July 22, 2010 6:45 PM
To: [log in to unmask]
Subject: Re: Comments filed today by American Red Cross
I really have to agree with Konstantinos and tlhackque. Deb, your perspective is entirely that of a large trademark holder, which is a legitimate perspective for you to represent, but a very limited perspective and others have to be taken into account.
From 2000 - 2002 I compiled a huge database of domain name-trademark disputes. I saw thousands of cybersquatters and other kinds of abuse but I also saw hundreds of unfair accusations and plain old reverse domain name hijacking by companies that just wanted a valuable .com name. Before you can take valuable resources away from people there has to be due process. The need for speed has to be moderated by the need for justice.
I don't get your argument about the distinction between a user and an internet registrant; a registrant is a user. Most people who register domains are not preparing legal defenses for 30 days before they register.
From: NCSG-NCUC [mailto:[log in to unmask]] On Behalf Of Debra Hughes
Sent: Thursday, July 22, 2010 1:43 PM
To: [log in to unmask]
Subject: Re: [NCSG-NCUC-DISCUSS] Comments filed today by American Red Cross
Konstantinos,
Regarding rapid decision making, in my comments, we offered the following suggestion:
In addition, the examiner should be required to render a decision within seven (7) business days, rather than being allowed up to 14 days, with a goal and best practice of providing the Answer within three (3) days. Once again, the use of a form Decision should greatly increase the ability of examiners to provide their Decisions in a rapid manner.
Regarding your comments about 14 days to respond, let's also remember the difference between a "user" of the Internet and a "Registrant". Your mention of users below is perhaps misplaced. We are talking about Registrants of domain names and not end users of the DNS. A Registrant had access to the Internet when he/she registered the domain name (either personally or through another party acting on his/her behalf). The Registrant had "all the time in the world" to decide to register its problematic domain name for a problematic use before he/she actually registered the domain - long before the Complaint was aware. The Registrant also had the ability to access the Internet to engage in fraudulent activity - he/she had plenty of time to consider and prepare the content and use of the domain name. It's a bit one-sided to argue that if an organization sees a problematic use we should agree to 20 days for the Registrant to prepare a response for the reasons you mention below. Also, a form for the Answer could minimize the need for an attorney for Answers, but if not, Registrants should know that the act of registering a domain name has potential consequences. A Registrant willingly enters a contractual relationship with the registrar when he/she decides to register a domain name.
On a related note, I think new gTLD and other outreach efforts to those in the developing and emerging regions could offer a primer to the community about the domain registration process - explaining the contractual relationship between the registrar and the registrant. Guidance could be given to the community about these processes, obligations, what a Registrant "agrees to" when registers a domain name and an explanation of the potential consequences. Perhaps those that offer pro bono legal services can talk about the types of assistance they can offer Registrants in these scenarios. These are ideas I am sharing with those involved with outreach activities within ICANN. Perhaps there are other ideas NCUC/NCSG members have to help Registrants understand and the "business" behind the registration process.
Debbie
Debra Y. Hughes l Senior Counsel
American Red Cross
Office of the General Counsel
2025 E Street, NW
Washington, D.C. 20006
Phone: (202) 303-5356
Fax: (202) 303-0143
[log in to unmask] <mailto:[log in to unmask]>
________________________________
From: Konstantinos Komaitis [mailto:[log in to unmask]]
Sent: Thursday, July 22, 2010 12:21 PM
To: Hughes, Debra Y.; [log in to unmask]
Subject: RE: Comments filed today by American Red Cross
Just one point I would like to clarify being involved and having researched on both the UDRP and the URS. In a system of adjudication, the term 'rapid' does not really refer to the speed leading up to the adjudication process; rather, it refers to the 'rapidness' of the decision-making process. And, the recommendation of the STI has been consistent with this, instructing panels to submit their decisions within 3 business days.
This distinction in determining 'rapidness' is crucial for the adjudication process and in Brussels as well as from the comments it appears that the trademark community misinterprets what we mean by rapidness. No system is fair if it is rapid during the discovery process or in any other process leading up to adjudication.
And, 14 days is not really fair. Again, just like the problems with the UDRP, the complainant has all the time in the world to compile, submit and file the complaint. The Respondent is given only 14 days? What about legitimate Registrants located in parts of the world with limited Internet access? For many users the Internet is still not a given. What about legitimate Registrants whose first language is not English? What about legitimate Registrants that have to find a lawyer to compile the Response on their behalf? All these are legitimate reasons for the deadline to be 20 days - at least that is how I feel and that is what 10 years of UDRP experience teaches us.
KK
Dr. Konstantinos Komaitis,
Law Lecturer,
Director of Postgraduate Instructional Courses
University of Strathclyde,
The Law School,
The Lord Hope Building,
141 St. James Road,
Glasgow, G4 0LT
UK
tel: +44 (0)141 548 4306
http://www.routledgemedia.com/books/The-Current-State-of-Domain-Name-Regulation-isbn9780415477765
Selected publications: http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
Website: http://domainnamelaw.ning.com/
From: NCSG-NCUC [mailto:[log in to unmask]] On Behalf Of Debra Hughes
Sent: Thursday, July 22, 2010 4:25 PM
To: [log in to unmask]
Subject: Re: Comments filed today by American Red Cross
Thanks, Rafik. The work of the JAS WG is very important and of course related, in part, to the outreach work we are both involved with on the OSC Constituency and Stakeholder Group Operations Work Team.
About the thin v. think comment below: In a thin registry (.COM is an example), the Whois records includes limited data - only enough to identify the registrar of the domain name (registrar name, registration status, creation/expiration dates). So, for a problematic .COM domain, obtaining the contact details for the registrant is a two (or three or four or five...) step process for research.
For example,
Step 1: Look up the domain name using a Whois service of choice. Find out registrar.
Step 2: Then, go to that particular registrar's Whois service to obtain the publicly available Registrant's contact information.
Step 3: If the bad actor is using a privacy/proxy service, I have to keep my fingers crossed that the privacy/proxy service has a fair (and hopefully easy and inexpensive) system for me to request the concealed contact information for the Registrant. Hopefully they will follow their policy!
Step 4: Proxy/privacy service does not have a system to request underlying contact information or ignores request, I have to decide whether it makes sense to spend donor dollars to get a subpoena, if applicable or escalate the request for contact information.
A record from a registry operating a thick Whois server (like .ORG) includes the registrant's contact information, admin/tech and the registrar info. It eliminates having to go two places to get the publicly available Registrant contact info, which is important for not for profit organization that are often asked to do more with less resources. The other benefit of a thick registry is when a registrar goes out of business, the thick registry will retain the registrant info (except if the registrant used a privacy/proxy service).
About the URS, I think fairness is important - fairness to the registrant and a fair procedure for an organization that is being harmed by a bad actor from a "clear cut" instance" of trademark abuse." I think the suggestion of giving Registrants 14 days, rather than 20 days to file an Answer is fair, not abusive and consistent with the intent of "rapid" suspension. Also, if ICANN provides a form complaint and reduces the word/page limit, it is possible a Registrant, who is inexperienced with such actions, might feel less intimidated. Also, the suggestion of a form Answer can help inexperienced Registrants prepare responses.
Debbie
Debra Y. Hughes l Senior Counsel
American Red Cross
Office of the General Counsel
2025 E Street, NW
Washington, D.C. 20006
Phone: (202) 303-5356
Fax: (202) 303-0143
[log in to unmask] <mailto:[log in to unmask]>
________________________________
From: NCSG-NCUC [mailto:[log in to unmask]] On Behalf Of Rafik Dammak
Sent: Thursday, July 22, 2010 6:24 AM
To: [log in to unmask]
Subject: Re: Comments filed today by American Red Cross
Hello Debbie,
Thanks for comments sent to the JAS WG, the document is shared within the WG members.
I was little bit puzzled by the mention of supporting thick whois as suggested by IRT, even there are some people arguing for that , I think that a balanced solution for common ground of different interests is mandatory with safeguard for privacy. also about URS, maybe we can assume that there is need make it simple and short, how we can prevent abuse of using URS for this supposed mechanism to prevent abuse?
Regards
Rafik
2010/7/22 Milton L Mueller <[log in to unmask]>
Deb:
Glad to see that Red Cross is endorsing the idea that nonprofits might use a new gTLD for "internal business purposes under a model that is different from a commercial, profit-driven new gTLD"
________________________________
From: NCSG-NCUC [[log in to unmask]] On Behalf Of Debra Hughes [[log in to unmask]]
Sent: Wednesday, July 21, 2010 8:21 PM
To: [log in to unmask]
Subject: [NCSG-NCUC-DISCUSS] Comments filed today by American Red Cross
All,
Attached are comments filed by the American Red Cross on the Joint SO/AC Working Group Report and on DAG4.
<<American Red Cross Comments on Joint SO-AC WG Report - 07212010.pdf>> <<American Red Cross Comments on DAGv4 - 07212010.pdf>>
Thanks,
Debbie
Debra Y. Hughes l Senior Counsel
American Red Cross
Office of the General Counsel
2025 E Street, NW
Washington, D.C. 20006
Phone: (202) 303-5356
Fax: (202) 303-0143
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