|WIPO Proposal to ICANN to Expedite Domain Forfeiture Proceedings|
Notice by Email Only, 10-15 Days to Receive Notification, Hire Attorney, File Answer
Call this WIPO's "How to Lose a Good Domain, Lawfully and Forever, in Only 10 Days" proposal.
I'm sure most people who read this headline think "this doesn't apply to me, this will never happen to me". Maybe so, but just in case it ever does I want you to know this is your chance to speak to ICANN about you views on due process, fair procedings, etc. You could go on vacation for 10 days and return to find that your website is no longer your website. Legally. Permanently.
Copy of WIPO letter and proposal [icann.org].
Proposal Section 1. WIPO suggests that an "abuse prevention measures", to deter SOBs from making mass filing attacks, would be to "use captchas to prevent exploitation of the expedited procedure".
Section 5. Notice of the "expedited hearing" solely by email.
Does this mean I can file for the domain Money.com and, if the guy in charge of the domain is on vacation, I can get the domain?
I understand that the entire domain registration system is built around email, but this process isn't "domain registration". This is "taking of property".
Is Email inherently reliable? Don't think so. Is it efficient, when it comes to domain name registration and transfers? Sure, with its build in safeguards - like secure logins, EPP or "transfer codes", "executive transfer controls", etc.
Sorry, but "judicially sanctioned forfeiture of property by 10-15 day email alone" doesn't cut it for due process in my book.
First off, IF service by email alone is so inherently reliable (fair) then why don't courts around the world accept service by email? Why? Because most judicial bodies would laugh at the idea. Most judges would shudder to think that their property could be taken via "email alone" + "default".
Also, where's the proposal for a party to seek to vacate a default judgment? Where's the proposal for a party to say "Hey! I was on vacation!" or "Hey, what email?". Not seeing it. All the focus appears to be on expediting the taking of property, not protecting the rights and interests of bona fide property holders.
Section 6. Time limit of 10-15 CALENDAR DAYS to file a response.
Let's see. Sat, Sun, M, T, W, Th, F, Sat, Sun, Mon, DEAD DOMAIN. Lesson? Don't go on vacation someplace where internet access is problematic. Don't get sick or be hospitalized either. 10 "calendar" days? NUTS. Nuts to 15 also.
So, say you're away for a few days. You first see the email on day 5, which is a Friday evening. Can you reach a lawyer Sat. or Sun.? Maybe not. So, it's now Monday, day 8. And you have 2 days to discover what lawyers handle such matters, forward him/her sufficient info, pay a retainer, . . .
Section 7.1. Prima Facie determination by a neutral "on the merits".
I love this one. It's a hearing before the hearing by a so-called "neutral". I love neutral people, the totally unbiased. The problem is finding one of us.
I somewhat appreciate the idea behind this, i.e., to expedite the total BS cases. But I do have a problem with the so-called "fair judge" saying what's fair and then the fair judge's colleagues having to say "not fair". I understand that happens all the time with appeals, but this is a bit more of a bureaucratic process and system.
Section 7.2 Following "default" (not filing a response) name is taken.
There have been many past cases where a proceeding was determined to be sufficiently lacking in "winning merit" that a person/entity who chose not to file a response still prevailed. Will this change?
Summary: I understand there are numerous BS registrations, one's that "on their face" (DisneyWurld.com, etc.) might qualify for an expedited process, but I do not agree that a "one size fits all" approach is a good idea - at all.
[edited by: Webwork at 5:34 pm (utc) on April 5, 2009]
Don't get excited - no one is losing .com domains here.
Webwork, I think somehow the terms "new gTLD" and "trademark abuse" slipped you by. :)
This is all about a speedy process to claim domains that infringe on existing trademarks, on new gTLDs that don't even exist yet.
Nothing to do with filing for money.com and getting the domain if the guy is on vacation, and IMO not home-page material, even with the facts corrected.
Once such a system is in place, what is to prevent it from being used on ALL domains?
ICANN has always went for ways to do things that lessen their involvement and overhead. Why have two separate procedures if one makes things faster and easier for ICANN?
Trademark abuse can be subjective: take for instance the case of "Nissan.com". There was no trademark abuse, but the big company tried to get the little company to forfeit their domain. This would be much easier with the proposed system.
With this new ruling, if I register www.XYZ.com and a year later a bigger company comes along and tradmarks XYZ, they could take my domain. Is it trademark abuse if I had the domain first?
I also agree that email is NOT the way to handle a system where the default is: you lose. I noticed that the WIPO sent their proposal by email AND COURIER - not email alone.
A simple change in the system would be to make the default - no change of ownership. This solves most of the lost email problems and requires more of the opposing party rather than the domain owner.
I read that, stormy, but here's the rub.
First, every single WIPO case is filed with the claimant asserting "trademark abuse". This includes the many claims that have been denied, some filed in such bad faith that the panel concluded there was an attempt at reverse domain name hijacking. So, allow me to lope off one branch of the "don't get excited" argument. Under this proposed process there will be those with weak trademark claims who will file for an expedited hearing just so they can grab a domain they couldn't otherwise get by ordinary processes.
That leaves "the process" that is being proposed. Why should I get excited? All WIPO is talking about is due process as it applies to "new gTLDs", right? The supposition that this will "only new gTLD"s.
If you know anything about the evolution of "the law" then you will quickly accept that one of the central tenets of evolved law is due process. The life force of "due process" flows from principles such as "fair notice" and "opportunity to be heard". Due process and its underlying principles tend to yield to notions of "administrative convenience" or "administrative efficiency" only after wars or a coup.
Anyone hear of a war? Anyone learn of a coup?
Yes, by this proposal war has just been declared - by WIPO - on cybersquatters.
That's not all bad. I don't have a problem with a war on cybersquatters. However, I DO have a BIG problem with executive branch (ICANN) and judicial branch (WIPO) sanctioned collateral damage, innocent and/or appropriate registrations wrongfully taken.
But collateral damage is an unavoidable consequence of war, right?
War, yes. Judicial process? No.
Another central premise of evolved legal thinking is that it is better for a dozen guilty parties to avoid the gallows than for a nation to hang one innocent man. But this clearly has the air of "hang all the cybersquatters" - guilty or innocent. Notice by email only. 10-15 calendar days to gather your facts, find and retain a lawyer, have the lawyer prepare and file your defense.
I just don't get how a "world" agency, such as WIPO, would be so inclined to dispense with procedural safeguards. That is, unless WIPO is coordinating a war effort with WIPO.
Oh, but it's only going to apply to new gTLDs. WIPO's and ICANN's willingness to entertain dispensing with due process will only be applied prospectively. So this is only a little tsk-tsk to due process, right?
There's an infamous phrase in the legal profession, one that causes many a legal professional to shudder: "pilot program [google.com]". Pilot program, translated, means "If we (=the bureaucracy) like the way this works (if it makes our life easier, etc.) then today it's apples, tomorrow it's oranges, pineapples, and grapes."
[edited by: Webwork at 1:57 pm (utc) on April 6, 2009]
Fair enough. So, how do we voice our complaints? :-)
Torches and pitchforks at midnight? ;)
I believe the next step will be to contact ICANN to voice our concerns. I don't have the contact address "for this issue" at this time. If anyone else does please post it.
Maybe we should also ask the National Arbitration Forum to have a representative speak to the issue of due process? :P
|Is Email inherently reliable? Don't think so. Is it efficient, when it comes to domain name registration and transfers? Sure, with its build in safeguards - like secure logins, EPP or "transfer codes", "executive transfer controls", etc. |
agreed. what happens when the email gets buried under all the cialis and google atm spam? i have missed a number of emails that have gotten buried under other emails. sometimes even serious emails have a subject line that resembles spam, and i ignore it, only to find out a month later i could have used that information.
I had a call just today from an ex client. They left us about 3 years ago, in favour of a cheaper site and domain managing service. The guy called me to see if I knew why his charity site has been down for 6 months. I did some research with him on the phone and figured out their new 'provider' hadn't renewed the domain. I explained what he should say to the provider to get it fixed. I suspect the new guy managing his domain changed his email address somtime in the last 3 years, and didn't know to update his Registrar account. This kind of thing happens all the time for the non-experts.
A few years ago ICAAN changed the transfer process, so if no reply was received within 5 days the tansfer would prooceed. Anyone who manages multiple names (e.g. for clients) knows domain communication emails somtimes get lost, get labelled spam, get burried... I think thats when Registrars invented domain locking - to put a safeguard back in the system.
I whole-heartedly agree we need an efficient system, however an acceptible solution must include defence against email loss and the escalating legions of domain tricksters (who are not adverse to manual logging in).
|Proposal Section 1. WIPO suggests that an "abuse prevention measures", to deter SOBs from making mass filing attacks, would be to "use captchas to prevent exploitation of the expedited procedure". |
Section 5. Notice of the "expedited hearing" solely by email.
wow, I want whatever they were smoking when they wrote that. I'm guessing they are basing their decision that captchas are infallible, they are like a safe that is sent over the 'Internets' tubes that All Gore invented. Also, no website owner, especially a legitimate business, has a telephone. I would never want a call to let me know someone is stealing my domain. </sarcasm>
Ah the WIPO. The organization by corporate political design which can circumvent all, repeat all other laws. An organization which is a law unto itself, like Interpol but with failed lawyers instead of disgruntled policemen. Hopefully one day people, real people, will sit up and say "Hey, who the heck are the WIPO? How the flip do they help me or the Internet? Are there any tld's out there which have not sold their souls to the Swiss (outside EU law, a bit like PayPal and Luxembourg) devil?"
The WIPO document gives us the contacts they used:
Mr. Kurt Pritz, Mr. John Jeffrey, Ms. Amy Stathos
Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292-6601
United States of America
By courier, and
Email: kurt .firstname.lastname@example.org, email@example.com, firstname.lastname@example.org