[CPWG] [registration-issues-wg] [GTLD-WG] WIPO FAQ page on GDPR and its impact on the UDRP.

Mon Sep 3 21:55:48 UTC 2018

Theo,

Thanks.  That wasn't my question, though; I know how to find decisions (and
the statistics page).  The question was whether this is a tally of
decisions per month, or filings per month.  (The statistics page does not
say.)  If it is filings, it gives us a look at the recent filing behavior
of complainants.  If it is decisions, then it reflects filings that were
made some months ago.  These could include numerous filings based on
investigations that took place prior to May 25.  In any event, the effect
of the partial WHOIS blackout is not necessarily a precipitous change, and
not necessarily one reflected in such a blunt-force statistic as number of
cases (filed/decided?) per month.  In my view, it is more likely a
degradation over time (as third party WHOIS databases degrade in accuracy
and completeness) and a constellation of secondary effects (in addition to
those mentioned, fewer attempts to negotiate a resolution prior to filing
(since one would have little idea who one would be dealing with), higher
expenses associated with making a case, a possible uptick in litigations
(due to changing costs and availability of information), a possibility that
registries and registrars will have to deal with litigations in a number of
ways (discovery requests, liability issues, in rem cases (cases against the
domain name rather than the registrant)), etc.

As for how you determine #1 (The potential complainant won't be able to
tell whether the registrant may have a legitimate interest in the domain
name, and whether that right predates the complainant's rights.  This could
result in cases being filed that wouldn't be filed with better
information.)  The identity of the registrant is key, along with the date
the domain name was registered by (or transferred to) the registrant), and
the contents of the website (if there is one).  All of these would be
weighed and considered, along with any information one could glean based on
this data.  But without the name, it's much harder to make a reasoned
judgment call.

If the registrant's business name (or more rarely, personal name) is
identical or related to the domain name, that could  be an indicator of
legitimate rights in the domain.  This could then lead to an investigation
to learn more about the registrant.  Depending on the investigation, it
could be the end of the case, or it could make the case stronger.  More
information will also help the complainant feel more comfortable about
contacting the registrant to see if an amicable resolution can be reached.
This can also help avoid potential RDNH cases, which will be less obvious
and harder to identify now.

Cybersquatting is a problem for a lot of actors.  However, brandowners are
at the "tip of the spear" in many respects.  Those other actors depend in
significant part on brandowners' efforts to monitor, investigate and shut
down cybersquatters -- because it's the companies' trademarks that are
being squatted.  There are a variety of avenues to shut down
cybersquatters, and the UDRP is a primary avenue.  A lot of cybersquatting
situations involve considerably more than cybersquatting, such as fake
websites and emails using stolen content, phishing, spearphishing, fraud,
theft, counterfeiting, distribution of malware, spam, etc.  This could
suggest other avenues aside from UDRP as better choices to respond,
including providing information for civil or criminal investigations,
alerting registrars to Terms of Service violations, etc.  Precisely because
it can be complex, the crippling of any one solution vector could have
secondary effects.  Precisely because its complex, we all have to work
harder to understand it and keep up with it.

While the brandowners are the ones engaged in enforcement, it's the
end-users who are the victims.  Whether it's the use of a typosquatted
domain to fool a bank into sending money to a fraudulent bank account, the
theft of content which is then used to defraud consumers, redirecting
consumers to dangerous sites or to sites selling counterfeit goods, etc.,
etc.

Best regards,

Greg

.

On Mon, Sep 3, 2018 at 3:32 AM gtheo <gtheo at xs4all.nl> wrote:

> You can easily zoom in on the cases and the decisions by WIPO;
> http://www.wipo.int/rss/index.xml?col=dnddocs
>
> Out of interest, how do you actually determine 1? 2,3,4 are
> self-explanatory and cybersquatting is an issue for a lot of actors
> within the DNS ecosystem and a complex one to solve.
>
> Best,
> Theo
>
> Greg Shatan schreef op 2018-09-03 06:12 AM:
> > I'm not sure what you mean by this, since UDRP cases aren't "solved".
> >
> > It's unclear whether this statistic is the number of cases filed each
> > month, or the number of cases decided each month.  But that doesn't
> > really
> > matter.
> >
> > UDRP cases can be filed even in the absence of information regarding
> > the
> > identity of the registrant.  That's not the issue, and I don't believe
> > there were any claims that WHOIS partly "going dark" would result in
> > fewer
> > cases being filed.  If anything, more cases (but not better cases) may
> > be
> > filed (see #1 below).
> >
> > The issues that are caused by lack of registrant information include
> > the
> > following:
> >
> > 1.  The potential complainant won't be able to tell whether the
> > registrant
> > may have a legitimate interest in the domain name, and whether that
> > right
> > predates the complainant's rights.  This could result in cases being
> > filed
> > that wouldn't be filed with better information.
> > 2.  The potential complainant will have a much tougher time determining
> > whether the registrant engages in a pattern and practice of
> > cybersquatting
> > (since the identity of the registrant will not be known at the time of
> > the
> > complaint).
> > 3.  The potential complainant will have a much tougher time determining
> > whether other infringing domain names are owned by the same registrant.
> > 4.  It will be more difficult to consolidate cases, since it won't be
> > immediately clear that domains in different are under common control.
> >
> > Best regards,
> >
> > Greg
> >
> > On Mon, Aug 27, 2018 at 3:33 AM gtheo <gtheo at xs4all.nl> wrote:
> >
> >> So far the numbers of solved UDRP's under the GDPR regime remains the
> >> same compared to last year.
> >>
> >> http://www.wipo.int/amc/en/domains/statistics/cases_yr.jsp?year=2018
> >>
> >> WIPO has a lot of statistics;
> >> http://www.wipo.int/amc/en/domains/statistics/
> >>
> >> Best,
> >>
> >> Theo Geurts
> >>
> >>
> >>
> >>
> >> Dev Anand Teelucksingh schreef op 2018-08-26 09:04 PM:
> >> > the WIPO Center has produced the present Q&A on the GDPR’s relation
> >> > to the UDRP.
> >> >
> >> > http://www.wipo.int/amc/en/domains/gdpr/
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-- 
Greg Shatan
greg at isoc-ny.org

"The Internet is for everyone"
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