While I have no problem toning down the "blind eye" references, the proposed language below goes in the other direction by suggesting that highly automated functions somehow protect registrars and registries from liability. Courts, however, have found registrars in bad faith even when they raise the argument that they used an automated process. See, for example: http://www.ilrweb.com/pfdocuments/ilrpdfs/verizoncal_v_navigation.pdf <http://www.ilrweb.com/pfdocuments/ilrpdfs/verizoncal_v_navigation.pdf> Bad faith can and should be triggered by any number of factors (including those listed in the Anticybersquatting Consumer Protection Act and UDRP) and should not be limited to situations where the registry fails to perform specific RPMs. Sarah Sarah B. Deutsch Vice President & Associate General Counsel Verizon Communications Phone: 703-351-3044 Fax: 703-351-3670 sarah.b.deutsch@verizon.com ________________________________ From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] O n Behalf Of Steve DelBianco Sent: Thursday, November 05, 2009 2:25 PM To: Zahid Jamil; 'bc - GNSO list' Subject: Re: [bc-gnso] FW: [gnso-sti] Common Grounds Paper Thank-you, Zahid, for your exhaustive efforts on the rights protection mechanisms. As you requested, here's one comment on the draft BC position on Post Delegation Dispute Mechanism (PDDM): Twice in your draft you express concern about Registry Operators turning a "blind eye" to infringements. I'm a fan of clever phrases such as "turn a blind eye", but in this case I think the rhetoric may go too far. One of my registry members reminded me in Seoul that registry operations are highly automated processes. There is no human "eye" looking at registration Add records as they come in from registrars. Accordingly, I suggest replacing the two "blind eye" concerns in the BC comments with this statement: Registry operations for adding new names should be a highly-automated function, and the failure of a registry to take affirmative steps to assess whether a domain name violates trademark laws should not in itself constitute bad faith or systemic infringement. However, a registry operator who fails to perform the specific rights protection mechanisms enumerated in its Registry Operator's Agreement should be subject to PDDM claims, as set forth in the IRT Final Report. Again, thanks for working this on our behalf. -- Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482 On 11/4/09 12:37 PM, "Zahid Jamil" <zahid@dndrc.com> wrote: Would like to ask members that if there are any comments on the draft BC position on RPMs that was sent out earlier? If I don't hear anything on whether there will be comments and that I should hold sending this out to the GNSO, I will send it out by tomorrow to both the GNSO and the STI.