I agree there is some import to business, so I have been lurking on the WG list. But nobody has volunteered to lead for BC... Palage's comments could easily be turned into draft BC comments, but not by me. Until someone steps up, this will be low priority for the Officers. Mike Rodenbaugh Rodenbaugh Law -----Original Message----- From: "Michael D. Palage" <michael@palage.com> Date: Tue, 22 Sep 2009 08:33:21 To: 'Philip Sheppard'<philip.sheppard@aim.be>; 'BC gnso'<bc-gnso@icann.org> Subject: RE: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us Philip: Where to begin. First, I have been advocating the all registrants, both businesses and individuals, require openness, transparency and predictability in connection what will happened to their domain name once it expires. Most in the group have not opposed this fundamental principle. Hopefully you would agree with this statement. Now the Expired Domain Deletion Policy (EDDP) requires registrars to post on their website the actual fees charged to registered name holders for recovering domain names that are in RGP. Where you aware that ICANN's compliance team conducted an audit and found that only around 500 out of approximately 900 plus registrars where in compliance, see http://forum.icann.org/lists/gnso-pednr-dt/msg00136.html. Therefore, yes I stand by my original statement that there are potential impacts on business users. Second, please turn to Kristina Rosette's email to the Pendr comment forum, see http://forum.icann.org/lists/pednr-wg-questions/msg00007.html. In this email Kristina discusses how she sent a cease and desist letter to a registrant in connection with a domain name involving a trademark dispute. In response to this letter the registrant cancelled the name, now this action logically should have resulted in the name being cancelled at the registry thus starting the expiry/recovery period. But guess what, the name was removed from the registrant's account, but the registrar maintained the domain name in a different account but never bothered to change the underlying whois thus frustrating both the trademark owner, their legal counsel and the registrant. Therefor I continue to stand by my original statement that certain registrar practices impeded openness, transparency, and predictability in the name space to the detriment of registrants both businesses and individuals, particularly when these divergent practices also involves false and inaccurate whois data. Third, the current apparent practice of registrars involving expired domain name appears to directly and materially impact business, more specifically trademark owners in connection with enforcing their rights. When a name is deleted from the registry and re-registered the create date is reset. I do not have to explain to you the importance of the create date in connection with a trademark owner's ability to prevail under the UDRP. However, it appears that the current practice is for an expired domain name to be transferred to a third party post expiration. This means that the creation dates stays the same. Therefore a trademark owners ability to prove rights prior to registration of the domain name are frustrated when the creation is never reset when the domain name is transferred to third parties post expiration. In fact this practice may have also frustrated Google's original intention in becoming an ICANN accredited registrar see, http://domainnamewire.com/2006/12/15/google-offers-domains-from-godaddy-enom / Fourth, in this article to the Pendr mailing list I discuss a number of recent article that I found of relevant to the Working Group, see http://forum.icann.org/lists/gnso-pednr-dt/msg00163.html. The second article discusses potential Registrar immunity under EU law. Considering that a number of BC members have sued registrars, how this potential immunity/safe harbor precedent evolves is I believe relevant to the BC members. Fifth, my research revealed that there are divergent billing practices that various registries use in connection with expiring domain names. The particular practice of each registry is dependent upon their backend infrastructure provider. See this post where I discuss the potential for these divergent practices to lead to unpredictable results to registrants in connection with expired domain names, see http://forum.icann.org/lists/gnso-pednr-dt/msg00077.html Given the potential for an unlimited number of new gTLD as ICANN is proposing I think this is something that merited further consideration. While those registrars on the Working Group state that they have only a single renewal/expiration practice, staff will be interviewing a select cross section of registrars to determine if this is true. I could continue, but I have some billable work to do. So yes I stand by my original statement, and if you and the rest of the elected BC reps believe that this is truly a non-issue I would respectfully ask that you respond to the points I raised above. Best regards, Michael -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Philip Sheppard Sent: Tuesday, September 22, 2009 3:29 AM To: 'BC gnso' Subject: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us Mike (Palage), I find your statement that some BC members may find this issue of importance somewhat speculative. We first made the request to the BC for comments and to the small BC TF to write a statement on August 21 with a reminder on September 10. It met with silence. What evidence is there for your belief ? The only accurate statement at this time is - no comment. I would be delighted to see a BC member making an intelligent reasoned statement. Alas, no one has. Philip