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<TITLE>RE: [registrars] Interesting Opinion From ICANN</TITLE>
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<DIV id=idOWAReplyText33944 dir=ltr>
<DIV dir=ltr><FONT face=Arial color=#000000 size=2>John,</FONT></DIV>
<DIV dir=ltr><FONT face=Arial size=2></FONT> </DIV>
<DIV dir=ltr><FONT face=Arial size=2>Thank you for documenting this. There
is a fairly easy solution.</FONT></DIV>
<DIV dir=ltr><FONT face=Arial size=2></FONT> </DIV>
<DIV dir=ltr><FONT face=Arial size=2>All Registrars just need to have a second
accreditation that they own. Then they can cross Register the domains and
still maintain the control they want. Perhaps this would finally put an
end to the spurious comments about such accreditations.</FONT></DIV>
<DIV dir=ltr><FONT face=Arial size=2></FONT> </DIV>
<DIV dir=ltr><FONT face=Arial size=2>And of course, Pool.com would be happy to
help those Registrars monetize their new "Acquisition Registrar" <huge
grin>.</FONT></DIV>
<DIV dir=ltr><FONT face=Arial size=2></FONT> </DIV>
<DIV dir=ltr><FONT face=Arial size=2>Rob.</FONT></DIV></DIV>
<DIV dir=ltr><BR>
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<FONT face=Tahoma size=2><B>From:</B> owner-registrars@gnso.icann.org on behalf
of John Berryhill<BR><B>Sent:</B> Sun 22/10/2006 6:25 PM<BR><B>To:</B> 'Jeffrey
Eckhaus'; 'Registrars Constituency'<BR><B>Cc:</B> 'Tim Cole'<BR><B>Subject:</B>
RE: [registrars] Interesting Opinion From ICANN<BR></FONT><BR></DIV>
<DIV><BR><BR>
<P><FONT size=2>>Could you give some more background on
this?<BR><BR>Certainly.<BR><BR>As many registrars had assumed, the licensing and
identity disclosure language of RAA 3.7.7.3 has normally been used in the course
of UDRP disputes to determine the procedure whereby registrar-operated proxy
services will respond to the DRP commencement inquiry by identifying the actual
registrant of the domain name.<BR><BR>The normal course of events is described
in Ohio Savings<BR>Bank v. 1&1 Internet, Inc. and David Rosenbaum, WIPO
Case No. D2006-0881<BR><A
href="http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0881.html">http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0881.html</A>
:<BR><BR>--------<BR>When such circumstances arise, the Panel understands that
the Center's current practice is typically to require the complainant to amend
the complaint - either to name both the privacy service registrant and the party
using the privacy service or to simply name the party using the privacy service.
This practice is sensible and has the benefit of trying to get notice of the
proceeding to the party that is most affected the
proceeding.<BR>--------<BR><BR>In a currently pending UDRP dispute, the
Complainant has objected at great length to the identification of the real party
in interest of a proxy registration, and has insisted on maintaining the
registrar as the respondent in the proceeding.<BR><BR>The case manager passed
the issue to the Panel, which has issued a procedural order for various parties
involved in the dispute to explain what, if anything, should be the procedure
for proxy registrations, such as the one which WIPO maintains through Network
Solutions Private Registration for wipo.net.<BR><BR>In the course of these
events, Mr. Cole of ICANN has stated the position that any domain name which is
(a) registered to a registrar and (b) registered through that registrar, is an
invalidly-registered domain name. The preceding email is a direct quote
from Mr. Cole's email, referring to a proxy registration which was registered in
the name of the Registrar (in the manner that, say, Network Solutions Private
Registration Service names are registered) specifically with respect to domain
name registration contracts:<BR><BR>" Given that this entity is an accredited
registrar, it would appear that this registration may have been in violation of
paragraph 3.7.7 et seq. of the RAA, which "require[s] all Registered Name
Holders to enter into an electronic or paper registration agreement with
Registrar . . . ." Specifically, because a party cannot enter into a
binding contract with itself, it would appear that such a registration was
allowed without the requisite registration agreement..."<BR><BR>So the obvious
question is how can domain names such as GoDaddy.com, NetworkSolutions.com,
Register.com, etc., be validly registered domain names? MOST registrars
register their own domain names using their own registrar cred.<BR><BR>But Mr.
Cole is absolutely correct. Since a party cannot contract with itself,
then self-registrations by a registrar must be invalid.<BR><BR>One must note
that Mr. Cole stated "it would appear" and "may have been". This is
lawyer-speak for saying things you don't want to be held responsible for
actually saying. So, *it would appear* that he *may have been* hitting the
rice wine a little hard before he wrote that. To some, *it would appear*
that he *may have been* stating an opinion which, like many, is outcome based
rather than rule based.<BR><BR>It will be an interesting decision, since if
ICANN and the complainant in this WIPO proceeding, it is going to result in a
complete change in how disputes are handled relating to proxy registrations at
WIPO.<BR><BR>But the wider consequences of Mr. Cole's position if, as it appears
he may have been stating, are as interesting as will be the attempt to explain
them in a way that does not have the consequences stated - i.e. that a registrar
cannot enter into a domain registration contract with
itself.<BR><BR>John<BR><BR><BR><BR></FONT></P></DIV>
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