Yes! indeed confirms my fears... thank you! On Tue, Oct 13, 2009 at 12:36 PM, Konstantinos Komaitis <[log in to unmask]> wrote: > Dear Alex, > > You have certainly every reason to be worrying about paragraph 20 of the > Regulations - but I would extend this worry to the whole section. According > to its wording, Registrars are legitimized to proceed to content-related and > apply any other subjective criteria until they manage to 'satisfy themselves > that the name so submitted". This is very dangerous. It gives an > unprecedented level of discretion to registrars to proceed to evaluations > that fall completely outside their scope. the system can be gamed and abused > easily, mainly by trademark owners but not only. Registrars are not > authorized legal agents and they should not act accordingly. Especially > since the regulation imposes such harsh penalties, leaving such wide > discretion to registrars endangers the whole idea behind registering domain > names (innovation, entrepreneurship, etc). In what capacity will registrars > operate and what criteria will they apply in determining "contrary to the > law" and " does not infringe the rights of third parties"? > > Finally, the registrar is given too much power being able to revoke the name > at any time and I also find a, b, c, and d highly vague and problematic. > Only courts or an ADR is system - if is applicable and legitimate - can > determine these issues. Not registrars, which they only perform technical > management of the domain names. imagine for instance what would happen if > NSI were to determine whether a domain name is contrary to the law or > infringes the rights of third parties. it would be dangerous and would > create legal upheaval. > > Hope this helps. > > KK > > > On 12/10/2009 20:09, "Alex Gakuru" <[log in to unmask]> wrote: > >> Colleagues, >> >> Below is an excerpt from our draft regulations. I am uncomfortable >> with 20 (1) c. "does not infringe the rights of third parties;" which >> I find very generic and prone to abuse by Intellectual Property >> 'domain name rights' holders compared to "first come first served >> domain name registrations tradition. Furthermore this would imply >> imprisonments for such registrars in view of 25 (1) and (2). >> >> Would you kindly care to comment for our legal team to take note on >> our comments to be submitted soon? >> >> regards, >> >> Alex >> >> ----snip--- >> >> 20. 1) Registrars shall, before registering >> any domain name, >> Obligations of satisfy themselves that the name so submitted: >> Registrars a. complies with the guidelines issued pursuant >> to >> regulation 18; >> b. is not contrary to the law; >> c. does not infringe the rights of >> third parties; >> d. does not improperly give the impression >> of >> pertaining to public >> administration or the exercise >> of public powers >> 2) The Registrant shall be the holder of >> the registered >> domain name; provided that the >> Registrar reserves the >> right to recall the registered domain >> name if it is >> established that the registration was >> contrary to these >> Regulations. >> >> 21. Liability for the infringement of third party >> rights and interest >> Limitation of arising from holding or using a domain name shall >> be borne by >> Liability the Registrant. >> >> PART IV:MISCELLANEOUS PROVISIONS >> >> 25. >> Offences and (1) Any licensee who contravenes the provisions of this >> Penalties Regulation commits an offence. >> >> (2) Any person who commits an offence under these >> Regulations shall be liable on conviction to a >> fine not exceeding >> three hundred thousand shillings or to >> imprisonment for a term >> not exceeding three years or both. >> <http://www.cck.go.ke/UserFiles/File/E-transactions%20draft%202%20fair%20draft >> .pdf> > > -- > Dr. Konstantinos Komaitis, > Lecturer in Law, > GigaNet Membership Chair, > University of Strathclyde, > The Lord Hope Building, > 141 St. James Road, > Glasgow, G4 0LT, > UK > tel: +44 (0)141 548 4306 > email: [log in to unmask] > > >