PROPOSAL OF MODEL PROTOCOL FOR REGISTRAR TO REGISTRAR HANDLING OF REQUESTS BY A DOMAIN NAME HOLDER TO CHANGE REGISTRARS UPON NOTICE OF A POSSIBLE CLAIM
Scribe: Ted Shapiro
July 14th, 1999.
This proposal will be voted on at the July 27th Names Council meeting. Please comment on it.
Certain test bed registrars are already operational and more are rapidly coming on line with each passing week.
There is presently evidence of forum shopping for registrars with different dispute policies by domain name holders for improper purposes, including, but not limited to seeking to avoid the assertion of rights by a third party to that same domain name or the compliance with a cease and desist letter, or to avoid the initiation of a dispute policy by the registrar from which the domain name holder is seeking transfer, or the resolution of a properly invoked dispute proceeding under the policy of the registrar from which the domain name holder is seeking transfer.
The existing dispute policies presently in place and policies being discussed do not address any protocol for registrar to registrar handling of requests by a domain name registrant to change registrars upon notice of a possible claim.
ICANN should be able to make decisions without having to wait for quarterly meetings and a decision on this proposed model protocol is necessary to discourage ongoing undesired forum shopping.
ICANN already has made a decision that registrars must have a dispute policy in place before they can become operational. By resolution in Berlin, ICANN has encouraged the test bed registrars to formulate a model policy and is providing assistance to them in this regard.
The Intellectual Property Constituency therefore offers the following proposed model protocol for registrar to registrar handling of transfers for second level domain name registration records. We believe that this protocol would assist in protecting intellectual property rights holders. Importantly, the proposed protocol does not call for hindering the use of the domain name by the registrant assuming the dispute policy of their existing registrar so permits. The proposed protocol also attempts to address the time gap between the receipt of a cease and desist letter by the domain name holder and the invocation of a registrar's dispute policy (assuming that policy does not provide for the placing of a hold on the name). During this time gap, a domain name holder can seek to change registrars in order to avoid the invocation of its initial register's dispute policy.
Finally, if the domain name holder seeking the transfer has been improperly blocked by a third party from transferring registrars, that domain name holder will not be precluded from availing themselves of any and all appropriate remedies and actions.
Once a registrar's dispute policy has been properly invoked and the dispute is pending and remains unresolved, the registration of second level domain name registration record shall not transfer that domain name to another registrar until the dispute is properly resolved.
No registrar shall accept from any other registrar the transfer of a second level domain name registration record without receiving from the registrant seeking to transfer the domain name a sworn declaration or affirmation, under penalties of perjury in the applicable law of the jurisdiction where taken, that the domain name holder seeking such transfer has not received a cease and desist letter or notice of dispute concerning the domain name sought to be transferred from any third party.
Discussion of this issue at the July 12th provisional Names Council teleconference
Overall there was consensus in the pNC that this issue already had significant consensus behind it. I note that this draft model protocol has been endorsed by the IP constituency and there was general agreement in pNC on the principles to be achieved. The IPC feels that the exigent circumstances confronting us (test registrars coming on line) and the ICANN by-laws rendered this issue worthy for consideration despite the fact that the DNSO process had not been followed to the letter. However, the pNC felt that there were some technical concerns and that the draft model protocol should be further refined before retabling the issue for the July 27 teleconference. The main points raised during today's discussion were as follows Ken Stubbs Concern over the last paragraph relating to sworn statements due to the varying national legal regimes involved. Concern that the methodology could constitute an excessive burden for registrars. Answer from Ted Noted that the reference to applicable law was designed to take into account the existing of varying national legal regimes. Agreed that we would need to ensure that this was not overly burdensome.
Bill Semich Concern that this was "reverse cyberpiracy" and simply taking on board an existing NSI policy. Bill also asked for a further two or three sentences summarizing the draft model protocol . Answer from Ted Noted that this was not "reverse cyberpiracy" nor was it an effort to take adopt a NSI policy. Instead, it was meant to be a significant refinement to deal with a specific, increasing problem.
David Johnson Noted that this was a good example of an activity where there was already widespread agreement. Answered Bill Semich's question with respect to summarizing the proposal by noting that it was designed to prevent forum shopping by prohibiting DM holders from switching to another registrar when a dispute resolution policy has been invoked against them. He also suggested that there be a further report on the level of consensus at the next teleconference.
Answer from Ted Agreed that if members of the pNC were not ready to vote that further refinements and a gaging of consensus could be undertaken before the next teleconference.
Nii Quaynor Queried whether this draft model protocol would be a further way for big players to beat up on smaller players.
Answer from Ted Noted that this model protocol would also benefit smaller players.
Javier Sola was concerned that in the last point, the registrar was asked to swear that somebody else had not received a letter. He cannot do that, as it is something that is unrelated to him.
It was decided that a working group (Ken Stubbs, Ted Shapiro and David Johnson) prepare this issue for the next teleconference.