[bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us

Mike Rodenbaugh mike at rodenbaugh.com
Tue Sep 22 14:24:08 UTC 2009

I agree there is some import to business, so I have been lurking on the WG list.  But nobody has volunteered to lead for BC...

Palage's comments could easily be turned into draft BC comments, but not by me.  Until someone steps up, this will be low priority for the Officers.

Mike Rodenbaugh
Rodenbaugh Law

-----Original Message-----
From: "Michael D. Palage" <michael at palage.com>

Date: Tue, 22 Sep 2009 08:33:21 
To: 'Philip Sheppard'<philip.sheppard at aim.be>; 'BC gnso'<bc-gnso at icann.org>
Subject: RE: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us


Where to begin.

First, I have been advocating the all registrants, both businesses and
individuals, require openness, transparency and predictability in connection
what will happened to their domain name once it expires. Most in the group
have not opposed this fundamental principle. Hopefully you would agree with
this statement. Now the Expired Domain Deletion Policy (EDDP) requires
registrars to post on their website the actual fees charged to registered
name holders for recovering domain names that are in RGP.  Where you aware
that ICANN's compliance team conducted an audit and found that only around
500 out of approximately 900 plus registrars where in compliance, see
http://forum.icann.org/lists/gnso-pednr-dt/msg00136.html. Therefore, yes I
stand by my original statement that there are potential impacts on business

Second, please turn to Kristina Rosette's email to the Pendr comment forum,
see http://forum.icann.org/lists/pednr-wg-questions/msg00007.html. In this
email Kristina discusses how she sent a cease and desist letter to a
registrant in connection with a domain name involving a trademark dispute.
In response to this letter the registrant cancelled the name, now this
action logically should have resulted in the name being cancelled at the
registry thus starting the expiry/recovery period. But guess what, the name
was removed from the registrant's account, but the registrar maintained the
domain name in a different account but never bothered to change the
underlying whois thus frustrating both the trademark owner, their legal
counsel and the registrant. Therefor I continue to stand by my original
statement that certain registrar practices impeded openness, transparency,
and predictability in the name space to the detriment of registrants both
businesses and individuals, particularly when these divergent practices also
involves false and inaccurate whois data.

Third, the current apparent practice of registrars involving expired domain
name appears to directly and materially impact business, more specifically
trademark owners in connection with enforcing their rights. When a name is
deleted from the registry and re-registered the create date is reset. I do
not have to explain to you the importance of the create date in connection
with a trademark owner's ability to prevail under the UDRP. However, it
appears that the current practice is for an expired domain name to be
transferred to a third party post expiration. This means that the creation
dates stays the same. Therefore a trademark owners ability to prove rights
prior to registration of the domain name are frustrated when the creation is
never reset when the domain name is transferred to third parties post
expiration. In fact this practice may have also frustrated Google's original
intention in becoming an ICANN accredited registrar see,

Fourth, in this article to the Pendr mailing list I discuss a number of
recent article that I found of relevant to the Working Group, see
http://forum.icann.org/lists/gnso-pednr-dt/msg00163.html. The second article
discusses potential Registrar immunity under EU law. Considering that a
number of BC members have sued registrars, how this potential immunity/safe
harbor precedent evolves is I believe relevant to the BC members.   

Fifth, my research revealed that there are divergent billing practices that
various registries use in connection with expiring domain names. The
particular practice of each registry is dependent upon their backend
infrastructure provider. See this post where I discuss the potential for
these divergent practices to lead to unpredictable results to registrants in
connection with expired domain names, see
http://forum.icann.org/lists/gnso-pednr-dt/msg00077.html Given the potential
for an unlimited number of new gTLD as ICANN is proposing I think this is
something that merited further consideration. While those registrars on the
Working Group state that they have only a single renewal/expiration
practice, staff will be interviewing a select cross section of registrars to
determine if this is true. 

I could continue, but I have some billable work to do. So yes I stand by my
original statement, and if you and the rest of the elected BC reps believe
that this is truly a non-issue I would respectfully ask that you respond to
the points I raised above.

Best regards,


-----Original Message-----
From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of
Philip Sheppard
Sent: Tuesday, September 22, 2009 3:29 AM
To: 'BC gnso'
Subject: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a
constituency statement from us

Mike (Palage),
I find your statement that some BC members may find this issue of importance
somewhat speculative. 
We first made the request to the BC for comments and to the small BC TF to
a statement on August 21 with a reminder on September 10.
It met with silence.

What evidence is there for your belief ?
The only accurate statement at this time is - no comment.

I would be delighted to see a BC member making an intelligent reasoned
Alas, no one has.


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