Contractual Compliance Monthly Update | Issue 5
Welcome to the fifth issue of the ICANN Contractual Compliance Newsletter. This newsletter provides information, summaries, analysis and advisories relevant to ICANN's Contractual Compliance program.
It also contains responses to questions posed at a recent Registrar UDRP Compliance workshop held in Paris, France; information regarding two registrars that lost their accreditation; the latest information regarding ICANN's Whois Data Accuracy Study and upcoming events where contractual compliance will be discussed.
This Newsletter aims to inform readers and encourage community dialogue regarding contractual compliance matters.
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On 26 June, the Contractual Compliance Department hosted a Registrar UDRP Compliance workshop as part of ICANN's 32 nd Annual Public Meeting in Paris, France. Its purpose was to assist registrars and other parties in understanding registrar contractual obligations regarding the Uniform Domain Name Dispute Resolution Policy ("UDRP"). ICANN's Director of Contractual Compliance, Stacy Burnette, moderated the workshop with panelists Leena Ballard, Legal Officer, Arbitration and Mediation center for the World Intellectual Property Organization (WIPO), John Berryhill, Trademark and Patent Attorney, Kristine Dorrain, Internet Legal Counsel for NAF, Margie Milam, Corporate Secretary and General Counsel for MarkMonitor, and David Taylor, Partner, Lovells, LLP. The workshop was well-attended and audience members engaged in a lively question and answer period. The transcript and speaker presentations from this workshop may be accessed at http://par.icann.org/en/node/102. In an effort to respond to audience members' questions not addressed at the workshop due to time limitations, five questions appear below with brief responses.
Can you please confirm that it is ICANN's interpretation of the UDRP that the registrar's obligation to lock the disputed domain name kicks-in when the registrar is informed about the pending administrative proceeding by the UDRP provider, which usually is when the provider sends the registrar a request for verification of information contained in the filed Complaint, i.e. before the date of commencement. Zbynek Loebl, Czech Arbitration Court
The UDRP does not specifically state that registrars must "lock" disputed domain names. The UDRP makes clear at Paragraph 8 that the registrant may not transfer a disputed domain name during a pending administrative proceeding and the registrar reserves the right to cancel any transfer of a domain name registration to another holder that is made in violation of Paragraph 8. To avoid the administrative burden associated with monitoring transfer requests involving disputed domain names, many registrars "lock" disputed domain names upon notice of a UDRP complaint by a dispute resolution provider. However, there is no registrar obligation to "lock" a domain name pursuant to the UDRP. Nevertheless, registrar locking of disputed domain names is a common practice and it is encouraged to prevent registrant transfers that violate the UDRP.
Can ICANN provide the UDRP providers online access to an updated ICANN database of accredited registrars and their Whois? The Czech Arbitration Court (CAC) is developing an online platform for UDRP cases and such access would make it substantially easier to administer UDRP proceedings efficiently. Zbynek Loebl, Czech Arbitration Court
ICANN provides all ICANN-accredited registrars' public contact information and website addresses. This information is publicly available at http://www.internic.net/regist.html. ICANN is currently working closely with registrars to update this publically available information. However, ICANN is exploring ways to improve access to necessary information for dispute resolution providers.
The "U" means Uniform. However, different providers allow for flexibility in filing methods. Given that the United Nations Environment Program advocates people moving to low carbon economy (http://www.unep.org/wed/2008/english/) why does another UN organization, WIPO, insist people courier paper documents all over the planet when they could be easily delivered electronically? Andy Gardner
(This response was provided by Leena Ballard, Legal Officer, Arbitration and Mediation center, WIPO) The WIPO Arbitration and Mediation center is experienced in the use of electronic means of facilitating dispute resolution, and supports such options where these fit within ICANN's Rules framework for UDRP disputes.
The UDRP is designed as a quick method for mark holders to gain control of offending domains. Although there is a "stay proceeding and transfer domain" option available, the large number of UDRP defaults suggests that most respondents don't know that this option exists. I believe an option where the respondent could log into their Registrar's system and simply confirm they want the domain transferred immediately would be beneficial to all parties involved. The complainant would obtain the domain much faster without having to wait for the complaint to run its course and the provider would not be wasting resources on cases with obvious outcomes, allowing it to partially refund the complainant. What is the process to have ICANN investigate adding this option to the UDRP process? Andy Gardner
The Inter-Registrar Transfer Policy is intended to facilitate domain name transfers between registrars http://www.icann.org/en/transfers/policy-12jul04.htm. To change this existing consensus policy, a Policy Development Process (PDP) is necessary. Parties interested in ongoing PDP activities are encouraged to go to the Generic Names Supporting Organization (GNSO) website at http://gnso.icann.org/ for information. Parties interested in joining a constituency to promote a proposal for a policy change regarding the UDRP are encouraged to contact the Intellectual Property Constituency (IPC). http://www.ipconstituency.org/ .
Concerning the substance of the question above, there is almost always an option for the registrant of a domain name to transfer it to someone else – this happens all the time when domain names change hands, mostly as purely commercial transactions. However, the UDRP, specifically articles 7 (Maintaining of Status Quo) and 8 (Transfers During a Dispute) limit the scope for such activities when a UDRP proceeding has been launched. The UDRP enables a complainant to challenge a respondent's use of a particular domain name and, if the challenge is upheld, to gain the use of that domain name.
Under Par. 4 (a) of the Rules, the Provider must promptly review the Complaint for administrative compliance. It follows from the language of this provision that the Provider has practically three days from the receipt of the fees within which to do such a review. In order to complete the review, the Provider should ask the registrar(s) involved for verification of certain information (e.g. whether the named Respondent is really the holder of the disputed domain name etc.). What steps does ICANN recommend the Provider to do if the Registrar does not respond to the request for verification on time? Is this a reason for the Provider to wait and not commence the administrative proceeding or should the Provider rather commence the proceeding (in the absence of any defects apparent from its own review of the Complaint) and deal with any inconsistencies reported by the Registrar when the Registrar finally responds?
Response:Registrar failure to timely respond to requests for information should not prevent a dispute resolution provider from commencing an administrative procedure. Any information that a registrar is required to provide pursuant to the UDRP, but fails to provide, should be reported to ICANN for compliance action at http://www.internic.net/UDRPIntakeReportSystem.html, while the dispute resolution provider concurrently commences the administrative proceeding. This course of action is recommended to prevent administrative delay and provide for the speedy resolution of claims.
In late 2007 and early 2008, ICANN did not renew the accreditation agreements for two registrars, DotForce Corp. and Best Registration Services, Inc., over the objection of these registrars.
Although Section 5.4 of the RAA states that a registrar is entitled to renewal upon expiration, this Section clearly provides conditions for such renewal including, but not limited to, registrar must be in compliance with its obligations under the RAA.
ICANN did not renew the RAA for Best Registration Services and DotForce Corp. due to outstanding compliance issues such as failure to escrow data and failure to timely pay ICANN fees. These compliance issues were not resolved at the time renewal came due, despite the fact that ICANN sent notices of non-compliance to each registrar prior to RAA expiration. The domain names managed by DotForce Corp were successfully transferred to ICANN-accredited registrar Yesnic Co., Ltd. Potential gaining registrars are under consideration for the domain names formerly managed by Best Registration Services.
Registrars are encouraged to address all compliance issues quickly and thoroughly to avoid possible non-renewal at the end of their contracts.
The chart below reflects ICANN's termination history over the past five years. ICANN terminated 13 registrars, sending seven termination notices and not renewing six registrar agreements, over the objection of those registrars. Most registrar terminations resulted from RAA violations associated with failure to pay ICANN fees as failure to pay fees is often identified early and used as an expedient tool for termination.
|REGISTRAR TERMINATION SUMMARY|
|Registrar Name||Action Taken By ICANN||Date||Reason for Action||*Names Under Management||Status|
|Best Registration Services, Inc. dba BestRegistrar.com||No Renewal||4-Mar-08||Ineligible to Renew (failure to pay fees, Data Escrow)||4213||Terminated|
|iCrossing||Notice of Termination||27-Feb-08||Failure to Cure Breach (failure to pay fees)||0||Terminated|
|Inter China Network Software (Beijing) Co., Ltd. (aka 3721)||Notice of Termination||27-Feb-08||Failure to Cure Breach (failure to pay fees)||13||Terminated|
|Nom d'un Net ! Sarl||Notice of Termination||27-Feb-08||Failure to Cure Breach (failure to pay fees)||0||Terminated|
|DotForce Corp. dba DotForce.com||No Renewal||13-Nov-07||Failure to Cure Breaches (failure to pay fees)||218||Terminated|
|RegisterFly.com, Inc.||Notice of Termination||16-Mar-07||Failure to Cure Breaches - RAA Section 4.1 - Failure to abide by consensus policies 3.4 Failure to maintain registration data - 3.9 Failure to pay refund fees||2,000,000||Terminated|
|Apex Registry, Inc FKA Dodora Unified Communications, Inc.||No Renewal||25-Jun-06||Failure to Cure Breaches (failure to pay fees)||0||Terminated|
|Adgrafix||No Renewal||26-Jan-06||Failure to Cure Breaches (failure to pay fees and company filed for bankruptcy)||0||Terminated|
|centergate Research Group||No Renewal||6-Jul-05||Failure to Cure Breaches (failure to maintain insurance and working capital)||0||Terminated|
|Eastern Communications Company||No Renewal||5-Jun-05||Failure to Cure Breaches (failure to pay fees)||n/a||Terminated|
|GlobalHosting, Inc.||Notice of Termination||15-Apr-04||Failure to Cure Breach (failure to pay fees)||n/a||Terminated|
|Philippine Registry.com||Notice of Termination||19-Oct-03||Failure to Cure Breach||n/a||Terminated|
|Shaver Communications, Inc.||Notice of Termination||26-Sep-03||Failure to Cure Breach (failure to pay fees)||n/a||Terminated|
As reported in the April 2008 Contractual Compliance Newsletter, ICANN has undertaken a Whois Data Accuracy Study of domain name Whois contact information accuracy. ICANN engaged the National Opinion Research center ("NORC"), one of the largest and most respected social research organizations in the United States to develop a methodology that proposes the use of a random sample of the gTLD population to assess the percentage of certain Whois data accuracy.
Established in 1941, NORC conducts numerous research projects involving opinion survey and other data collection and technology strategies. NORC's projects are focused in a number of topical areas: society and culture; economics and population; education and child development; health studies; substance abuse; mental health; criminal justice; statistics and methodology; and technology. Within each area, NORC designs and implements surveys and other data collection strategies, conducts advanced statistical and other analysis, provides technical assistance, and applies advanced technologies.
NORC is to provide ICANN with a sampling plan and a suitable methodology for the Whois Data Accuracy study. The organization has significant experience in developing new methodologies to fit particular circumstances; in this case to determine whether registrants identified in Whois data actually registered domain names.
The next steps are as follows:
- NORC is analyzing the domain name population further and developing an appropriate sampling plan and methodology;
- ICANN to determine if the methodology and sampling plan proposed by NORC are acceptable; and
ICANN is hosting a Registrar/Registry Regional Gathering in Seoul, Korea 10-11 September 2008. As part of this event, the Contractual Compliance department will present information regarding ICANN's Contractual Compliance program and host a Registrar UDRP Compliance workshop to assist registrars in understanding their UDRP related contractual obligations. Registrars and other parties interested in UDRP compliance are encouraged to attend this event.