Name: Sarbajit Roy
Date: 19 Apr 2022
Affiliation: Brahma University
Original Public Comment: Policy Status Report: Uniform Domain Name Dispute Resolution Policy (UDRP)
I support the views already expressed by NCSG, Romana Busse, 锦国 何, Dr. (Col) Rajendra Dalvi, George Kirikos (Leap of Faith), Lucas Gimeno etc. who like myself are collectively angered at the grossly unfair/corrupt UDRP regime which enables corporate raiders backed by lawyers and the almighty dollar to snatch the domains of non-infringing small domain holders running legitimate websites merely because a trademark holder happens to have registered some trademark globally. Not only is the UDRP and its Rules deeply flawed and biased against free speechers, with gaping loopholes being exploited by corporate domain raiders, but the UDRP service providers are corrupt and dishonest to the core in interpreting the UDRP and for selecting the most mercenary panelists they can enlist.
I support the views of George Kirikos in its entirety and equally demand that ICANN stop this farce of a public comment based on suppressed and manipulated data, and withdraw this report immediately. I concur that ICANN staff are incompetent and not up to the job. From what we see ICANN's entire system of public consultation is a sham and hollow formality to further the agenda of its organised mafia core sponsors.
I fully support the views of Lucas Gimeno and adopt them in their entirety. The UDRP is being fully exploited by professional domain snatchers in the "gray area" identified by him where the trademark abuse is not obvious. Like him I suggest the present UDRP system is akin to an automated sheep shearing assembly line where poor and small registrants are shorn of their domains into which they have poured their life's work. A small domain holder is helpless when a biased panelist mechanically copy pastes and cites previous UDRP decisions to snatch the domain away and earn his fee.
The real problem is cybersquatters who are mostly fronts for ICANN's Registrars . ICANN has failed to come up with an effective way to stop them. The URS is a compete and total failure and should be scrapped as should also be the UDRP. I say let the courts with competent jurisdiction sort it out. A cyber squatter is most unlikely to enter a court to protect his domain, unlike a genuine domain name holder. Let us simply have a rule that if Trademark Holder A files suit in his home jurisdiction and unless Registrant B either enters appearance in A's suit or B submits a court filing in B's home jurisdiction within 30 days, the domain wil be automatically transferred to A. At one sweep the entire UDRP regime can be safely eliminated while preserving the legal rights of all stakeholders. Under the present regime only the trademark rights of Western capitalist corporations are being protected while the consumer protection rights and e-commerce safeguard rights of the domain holders is being completely evaded. Accordingly, we have no faith in the ICANN or the UDRP and only have faith in due process and our consumer rights under national law in our national courts in New Delhi, India where we exclusively purchase and register the domain names using e-commerce processes.
I say the UDRP has to either be scrapped or else to be drastically amended to duly reflect national consumer rights laws so as to safeguard small free speech domain registrants or else, they like Brahma University has done, shall resort to revolutionary violence against their oppressors when their domains are snatched.
Accordingly I would like to raise the following additional specific issues concerning the highly unfair UDRP in its present form.
1. FORUM SHOPPING : UDRP service providers compete with each other to attract Complainants by delivering decisions in their favour by deliberate misinterpretation of law and policy evolved over the years and which are wrongly treated as precedent. This problem is now out of control with all service providers claiming 96% transfer rates. The 4% are those where the Complaint made some gross and obvious error.
2. Enforcement of National Law : At the time of Domain registration the ICANN must direct all Registrars to have a check box for the registrant to select between the Registrant's jurisdiction and/or the Registrar's jurisdiction. At present the Registrar's invariably insist on their own legal jurisdiction and disallow the Registrant's jurisdiction in their adhesive terms and condiiions. When I filed a contractual compliance complaint No. 01025332 demanding enforcement of my UDRP rights to my own national mutual jurisdiction against the Registrar and thereby against domain hijackers it took the incompetent chicken shit staff of ICANN 4 months to say they can do nothing to enforce my mutual jurisdiction rights in terms of their RAA with the Registrars
I reproduce the relevant UDRP clause "Mutual Jurisdiction means a court jurisdiction at the location of either (a) the principal office of the Registrar (provided the domain-name holder has submitted in its Registration Agreement to that jurisdiction for court adjudication of disputes concerning or arising from the use of the domain name) or (b) the domain-name holder's address as shown for the registration of the domain name in Registrar's Whois database at the time the complaint is submitted to the Provider." It clearly allows the domain name holder to opt out of the jurisdiction of the Registrar for UDRP disputes. ICANN's failure to incorporate an opt-out clause in the RRA / RAA is conclusive evidence of ICANN's complicity in domain hijacking and shows the grip the trademark mafia has over it. Looking at the Board members of ICANN it is clearly a Western White USA centric racist board bent on promoting US imperialism and internet colonisation biased against browns and blacks
3. Dominance of USA in the domain name business. A domain name registrant in India does not have the luxury of access to Registrars with principal place of business in India. Although there are a few ICANN accredited registrars from India, most are defunct and the rest are essentially operating as Resellers for a few monopolistic USA based sellers like Public Domain Registry. Even were I to book my domain through an "Indian" registrar ultimately the registrar on record would turn out to be in USA as per the WHOIS. It is therefore essential that under no circumstances can the registrar or the complainant avoid submitting to the national jurisdiction of the domain registrant at his recorded address as contained in the Whois. It is essential that the Registrars provide an opt-out in their booking forms and agreements for domain registrants to decline to submit to Registrar's jurisdiction for domain disputes
4. When the Complainant has the first choice of forum when he selects the Service provider of his choice, it is only fair that the losing party have his choice of one of the 2 mutual jurisdictions to bring his legal challenge. It is illegal and adhesive for ICANN or their service providers to allow the Complainant to decide where the losing Registrant shall file his counter law suit. Clause 4(k) must be amended to reflect that either party can file a suit in court of competent jurisdiction at any time before, during or after the proceedings. Mandatory clauses prohibiting availing of national legal remedies during a mere administrative proceeding are clearly illegal on the face of it. Furthermore, the time of 10 days is insufficient and must be increased to at least 21 days after receiving a certified hard copy of the panel decision which is duly notarised / apostilised to be acceptable in a court of law. The courts in India do not accept the emailed copy being sent as appealable orders, the IDRP can be referred to
5. The UDRP must be amended so that any Reverse Domain Name Hijack counter claim is taken up before the proceedings commence and not as an afterthought
6. ICANN and Panelists must not be excluded from future personal litigation against them for bad faith
7. The onus of proof must always be on the Complainant. Panelists cannot reverse the burden onto the registrant
Summary of Submission
I support and adopt the views of NCSG and others like George Kirikos, Romana Busse and Col Rajendra Dalvi in their entirety, and equally demand that ICANN stop this farce of a public comment based on suppressed and manipulated data, and withdraw this report immediately. I concur that ICANN staff are incompetent and not up to the job. From what we see ICANN's entire system of public consultation is a sham and hollow formality to further the agenda of its organised mafia core sponsors.
I fully support the views of Lucas Gimeno and adopt them in their entirety. The UDRP is being ruthlessly exploited by professional domain snatchers in the "gray area" identified by him where the trademark abuse is not obvious. Like him I suggest the present UDRP system is akin to an automated sheep shearing assembly line where poor and small registrants are shorn of their domains into which they have poured their life's work. A small domain holder is helpless when a biased panelist mechanically copy pastes and cites previous UDRP decisions to snatch the domain away to justify his overly fat fee and earn brownie points.
I have gone into the aspects of FORUM SHOPPING, WHITE RACISM in ICANN, IMPERIALISM in ICANN, Corruption of UDRP providers and panelists, Overarching principle of enforcement of national laws, access to national courts, and consumer protection for domain registrants using e-commerce for domain registrations from the USA domain registrar monopolies, requirement of jurisdiction of domain holders address never being snatched away by anyone and many other things in my longer submission.
A separate submission is being filed by Brahma University's media host INDIA AGAINST CORRUPTION who lost their domain name in a perverted UDRP decision of 2014 to show up what is wrong with UDRP and how it is misused.