[Gnso-ppsai-pdp-wg] Recap & Moving Forward

Wed Nov 5 22:22:44 UTC 2014

+1 to Kiran.

When I write that lack of a response to relays of cease and desist letters is a factor evidencing bad faith, I am not basing it on personal opinions. It is a factor that has long been accepted in UDRP decisions:

(1) Pearson Education, Inc v. CTP Internacional; Private Registration at Directi Internet Solutions Pvt. Ltd. and <scottforesmanandcompany.com<http://scottforesmanandcompany.com>>, WIPO/D2009-0266 (noting that privacy-shielded registrant's failure to reply to cease-and-desist letter was a "compounding" factor in finding bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-0266.html

(2) Advance Magazine Publishers v. MSA, Inc. and Moniker Privacy Servs., WIPO/D2007-1743 (observing that privacy-shielded registrant's failure to reply to numerous communications regarding its trademark infringement was prominent among several factors leading to a finding of bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-1743.html

(3) Fifth Third Bancorp v. Secure Whois Information Servs., WIPO/D2006-0696 (finding strong evidence of bad faith in proxy-shielded respondent's failure to respond to correspondence and provision of faulty contact information). http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0696.html.

(4) TDS Telecomm'cns Corp. v. Nevis Domains and Moniker Privacy Servs, .WIPO/D2006-1620 (finding bad faith in a privacy-shielded respondent's failure to reply to cease-and-desist letters addressed to its privacy service provider).
http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-1620.htmlhttp://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-1620.html

Best,
Val

Valeriya Sherman
Silverberg, Goldman & Bikoff, L.L.P.
1101 30th Street, N.W.
Suite 120
Washington, D.C. 20007
Tel 202.944.3300
Cell 303.589.7477
vsherman at sgbdc.com<mailto:vsherman at law.gwu.edu>
________________________________
From: gnso-ppsai-pdp-wg-bounces at icann.org [gnso-ppsai-pdp-wg-bounces at icann.org] on behalf of Kiran Malancharuvil [Kiran.Malancharuvil at markmonitor.com]
Sent: Wednesday, November 05, 2014 4:31 PM
To: Volker Greimann; gnso-ppsai-pdp-wg at icann.org
Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward

None of you seem to have read past what you quoted.  Val’s point is that it’s one thing (of many MANY factors) that may (or may not) contribute to a finding of bad faith.  At no point does she claim it’s a dispositive factor.  I’m sure that no one here believes that.  Like she explicitly said… lack of response doesn’t conclusively demonstrate rights or lack thereof.  Obviously it doesn’t.  Mischaracterizing statements does everyone in this group a disservice and distracts from the actual points being made.

Perhaps Val’s point (and if not, my point) is that disclosure is necessary to help rights owners begin a dialogue with the registrant about whether or not they have legitimate rights.  UDRP filings and the back and forth that results from that is unduly burdensome to brand owners and registrants when a private dialogue will do.  As you, we and other have pointed out, it’s not just those we have licensed that have a legitimate right to the name, but how do we know if we don’t know who they are/where they are?

You are right, it is absolutely a registrants prerogative to choose not to respond to a relay request.  But the issue should not end there.  I can refuse to respond to a subpoena, or refuse to pay my credit card bill, or refuse to respond to the government if the IRS requests an audit of my taxes.  That’s not the end of the story, there are consequences to those actions.  Perhaps there are consequences to ignoring “legitimate” (whatever we deem that to be) requests for information if certain criteria are met in certain situations.  I am not (at this point) advocating one solution or another.. but I would like to see language that suggests “absolutes” disappear from our discussions.

Thanks,

Kiran

Kiran Malancharuvil
Policy Counselor
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
www.markmonitor.com<http://www.markmonitor.com/>

From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Volker Greimann
Sent: Wednesday, November 05, 2014 1:32 AM
To: gnso-ppsai-pdp-wg at icann.org
Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward

Sorry, but I smirked at this comment:

Lack of response to relays is evidence of bad faith, [...].
Really? In my book, lack of response is evidence of only one thing: Lack of response is evidence of lack of response. Nothing more!

There may be so many reasons why someone may decline to respond that are not bad faith, your conclusion is far fetched at best.

- Message was caught by spam filters
- Message was accidentally deleted
- Message message was not read
- Message was considered spam and ignored
- Recipient believed the message does not concern him
- Recipient is in hospital/on vacation
- Recipient got scared by the harsh language used even though he is not actually infringing
- Recipient just does not want to deal with this at this time
- Recipient choses not to respond

And those are just off the top of my head.

Best,

Volker

Best,

Val

Valeriya Sherman
Silverberg, Goldman & Bikoff, L.L.P.
1101 30th Street, N.W.
Suite 120
Washington, D.C. 20007
Tel 202.944.3300
Cell 303.589.7477
vsherman at sgbdc.com<mailto:vsherman at law.gwu.edu>
________________________________
From: gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at icann.org> [gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at icann.org>] on behalf of Phil Corwin [psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>]
Sent: Tuesday, November 04, 2014 9:43 AM
To: Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>
Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Yes, Graeme, it is quite useful.

My only question regards this sentence – “Shouldn't an IP rights holder know who they've allowed to use it and for what? “ If “it” is a trademark/brand name, wouldn’t the rights holder already know that?

Best, Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at icann.org> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Don Blumenthal
Sent: Tuesday, November 04, 2014 9:36 AM
To: Graeme Bunton; gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>
Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward

Thanks, Graeme. This summary is very helpful.
Don

From: gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at icann.org> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Graeme Bunton
Sent: Monday, November 3, 2014 10:21 PM
To: gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>
Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward

For my own benefit I thought it useful to try and capture highlights from the recent list discussion.  Apologies if I've mis-characterized any of your arguments.  I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others.

In general, we're still discussing disclosure.  This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap.

Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions.  This was, If I am understanding correctly, that we can break down some issues into two groups:

String issues: problems directly related to the string of characters that constitute a domain name
Resolved resource issues: problems related to what a domain name is pointed at

I think it's worthwhile for us to discuss using those terms going forward.

Re: Allegations of IP Infringement and Disclosure & what constitutes content
Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement.  He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing.   Mandatory disclosure does not, to Phil, 'facilitate resolution'.    Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted.

We collectively batted this around for a bit, main points being:

  *   the cost of a UDRP may be a useful gate to prevent abuse
  *   'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use.
  *   Disclosure being helpful for the requestor does not by itself justify the disclosure
  *   UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure
  *   Disclosure rather than publish may keep the customer for the provider.

I don't think we resolved much from this discussion, but perhaps it clarified the positions.

To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap.   Shouldn't an IP rights holder know who they've allowed to use it and for what?  Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy?

The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light.  It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly.

Which lastly brings us to the discussion on a moderate central course of action.
James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others.

I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back.

Thanks

Graeme

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_________________________

Graeme Bunton

Manager, Management Information Systems

Manager, Public Policy

Tucows Inc.

PH: 416 535 0123 ext 1634

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