For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others. In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap. Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups: String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at I think it's worthwhile for us to discuss using those terms going forward. *Re: Allegations of IP Infringement and Disclosure**& what constitutes content* Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted. We collectively batted this around for a bit, main points being: * the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider. I don't think we resolved much from this discussion, but perhaps it clarified the positions. To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy? The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly. Which lastly brings us to the discussion on a moderate central course of action. James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others. I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back. Thanks Graeme -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
Thanks, Graeme. This summary is very helpful. Don From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Monday, November 3, 2014 10:21 PM To: gnso-ppsai-pdp-wg@icann.org Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others. In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap. Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups: String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at I think it's worthwhile for us to discuss using those terms going forward. Re: Allegations of IP Infringement and Disclosure & what constitutes content Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted. We collectively batted this around for a bit, main points being: * the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider. I don't think we resolved much from this discussion, but perhaps it clarified the positions. To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy? The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly. Which lastly brings us to the discussion on a moderate central course of action. James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others. I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back. Thanks Graeme -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634
Yes, Graeme, it is quite useful. My only question regards this sentence – “Shouldn't an IP rights holder know who they've allowed to use it and for what? “ If “it” is a trademark/brand name, wouldn’t the rights holder already know that? Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Don Blumenthal Sent: Tuesday, November 04, 2014 9:36 AM To: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Thanks, Graeme. This summary is very helpful. Don From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Monday, November 3, 2014 10:21 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others. In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap. Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups: String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at I think it's worthwhile for us to discuss using those terms going forward. Re: Allegations of IP Infringement and Disclosure & what constitutes content Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted. We collectively batted this around for a bit, main points being: * the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider. I don't think we resolved much from this discussion, but perhaps it clarified the positions. To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy? The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly. Which lastly brings us to the discussion on a moderate central course of action. James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others. I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back. Thanks Graeme -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date.
Phil/Graeme -- An IP owner would know who they authorized to use the IP and who they did not. The issue is that they do not know whether a particular Customer, whose identity is hidden, needs authorization or not. In the example I provided earlier, where a Requestor has rights in US but not in the EU, it would be essential for him to know where the Customer is located to establish whether the Customer needs any authorization -- and that is some of the information that Disclosure would provide. Another point that came up during our call is that an authorized party would respond to a relay request. Lack of response to relays is evidence of bad faith, but it doesn't obviate the need for disclosure. As noted above, a Customer may not need any authorization, so his failure to reply to a relayed request is not conclusive evidence of his rights or lack thereof. Disclosure is still needed. Best, Val Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com<mailto:vsherman@law.gwu.edu> ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org [gnso-ppsai-pdp-wg-bounces@icann.org] on behalf of Phil Corwin [psc@vlaw-dc.com] Sent: Tuesday, November 04, 2014 9:43 AM To: Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Yes, Graeme, it is quite useful. My only question regards this sentence – “Shouldn't an IP rights holder know who they've allowed to use it and for what? “ If “it” is a trademark/brand name, wouldn’t the rights holder already know that? Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Don Blumenthal Sent: Tuesday, November 04, 2014 9:36 AM To: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Thanks, Graeme. This summary is very helpful. Don From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Monday, November 3, 2014 10:21 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others. In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap. Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups: String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at I think it's worthwhile for us to discuss using those terms going forward. Re: Allegations of IP Infringement and Disclosure & what constitutes content Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted. We collectively batted this around for a bit, main points being: * the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider. I don't think we resolved much from this discussion, but perhaps it clarified the positions. To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy? The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly. Which lastly brings us to the discussion on a moderate central course of action. James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others. I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back. Thanks Graeme -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date.
Hi Val, I am sorry, but I simply do not agree with your statement "Another point that came up during our call is that an authorized party would respond to a relay request. Lack of response to relays is evidence of bad faith, but it doesn't obviate the need for disclosure." Any number of reasons could be cited for not replying, spam service for example messagelabs, hardened mail server simply rejects the mail for something as simple as an SPF conflict. An assumption just because I have not replied to you is not bad faith. Please remember that the receiver is not obliged to answer you, similar to any email you receive in your inbox. :) Kind regards, Chris ----- Original Message ----- From: "Valeriya Sherman" <VSherman@sgbdc.com> To: "Phil Corwin" <psc@vlaw-dc.com>, "Don Blumenthal" <dblumenthal@pir.org>, "Graeme Bunton" <gbunton@tucows.com>, gnso-ppsai-pdp-wg@icann.org Sent: Tuesday, 4 November, 2014 9:19:40 PM Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Phil/Graeme -- An IP owner would know who they authorized to use the IP and who they did not. The issue is that they do not know whether a particular Customer , whose identity is hidden, needs authorization or not. In the example I provided earlier , where a Requestor has rights in US but not in the EU, it would be essential for him to know where the Customer is located to establish whether the Customer needs any authorization -- and that is some of the information that Disclosure w ould provide. Another point that came up during our call is that an authorized party would respond to a relay request. Lack of response to relays is evidence of bad faith, but it doesn't obviate the need for disclosure. As noted above, a Customer may not need any authorization, so his failure to reply to a relayed request is not conclusive evidence of his rights or lack thereof. Disclosure is still needed. Best, Val Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com From: gnso-ppsai-pdp-wg-bounces@icann.org [gnso-ppsai-pdp-wg-bounces@icann.org] on behalf of Phil Corwin [psc@vlaw-dc.com] Sent: Tuesday, November 04, 2014 9:43 AM To: Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Yes, Graeme, it is quite useful. My only question regards this sentence – “Shouldn't an IP rights holder know who they've allowed to use it and for what? “ If “it” is a trademark/brand name, wouldn’t the rights holder already know that? Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Don Blumenthal Sent: Tuesday, November 04, 2014 9:36 AM To: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Thanks, Graeme. This summary is very helpful. Don From: gnso-ppsai-pdp-wg-bounces@icann.org [ mailto:gnso-ppsai-pdp-wg-bounces@icann.org ] On Behalf Of Graeme Bunton Sent: Monday, November 3, 2014 10:21 PM To: gnso-ppsai-pdp-wg@icann.org Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others. In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap. Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups: String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at I think it's worthwhile for us to discuss using those terms going forward. Re: Allegations of IP Infringement and Disclosure & what constitutes content Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted. We collectively batted this around for a bit, main points being: * the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider. I don't think we resolved much from this discussion, but perhaps it clarified the positions. To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy? The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly. Which lastly brings us to the discussion on a moderate central course of action. James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others. I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back. Thanks Graeme -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Hi Val, On 2014-11-04 4:19 PM, Valeriya Sherman wrote:
Phil/Graeme -- An IP owner would know who they authorized to use the IP and who they did not. The issue is that they do not know whether a particular Customer, whose identity is hidden, needs authorization or not. In the example I provided earlier, where a Requestor has rights in US but not in the EU, it would be essential for him to know where the Customer is located to establish whether the Customer needs any authorization -- and that is some of the information that Disclosure would provide. IP owners could also track the domains where their customers are allowed to use their IP.
Remember, we're not really talking about any content here that is hosted on a site with a domain under privacy, as the privacy provider usually has no involvement with the hosting etc. There are existing paths that deal with infringements that can be applied, no matter if there is whois privacy or not. But I also have to wonder if a partial disclosure of the registrant's country would satisfy your need in this case. Not that I support this either really.
Another point that came up during our call is that an authorized party would respond to a relay request. Lack of response to relays is evidence of bad faith, but it doesn't obviate the need for disclosure. As noted above, a Customer may not need any authorization, so his failure to reply to a relayed request is not conclusive evidence of his rights or lack thereof. Disclosure is still needed.
"Lack of response to relays is evidence of bad faith"? Why would someone be obliged to respond to a message they receive, be it via relay or not - and how do you ensure that its received? Best regards, /FM
Also note that even if no license of an IP is granted to a registrant of a domain name matching the string, the registrant may still have rights to use the string: - fair use - free speech - own IP - use in different categories not covered by IP - IP is generic/dictionary word/etc. Best, Volker Am 04.11.2014 22:45, schrieb Frank Michlick:
Hi Val,
On 2014-11-04 4:19 PM, Valeriya Sherman wrote:
Phil/Graeme -- An IP owner would know who they authorized to use the IP and who they did not. The issue is that they do not know whether a particular Customer, whose identity is hidden, needs authorization or not. In the example I provided earlier, where a Requestor has rights in US but not in the EU, it would be essential for him to know where the Customer is located to establish whether the Customer needs any authorization -- and that is some of the information that Disclosure would provide. IP owners could also track the domains where their customers are allowed to use their IP.
Remember, we're not really talking about any content here that is hosted on a site with a domain under privacy, as the privacy provider usually has no involvement with the hosting etc. There are existing paths that deal with infringements that can be applied, no matter if there is whois privacy or not.
But I also have to wonder if a partial disclosure of the registrant's country would satisfy your need in this case. Not that I support this either really.
Another point that came up during our call is that an authorized party would respond to a relay request. Lack of response to relays is evidence of bad faith, but it doesn't obviate the need for disclosure. As noted above, a Customer may not need any authorization, so his failure to reply to a relayed request is not conclusive evidence of his rights or lack thereof. Disclosure is still needed.
"Lack of response to relays is evidence of bad faith"? Why would someone be obliged to respond to a message they receive, be it via relay or not - and how do you ensure that its received?
Best regards, /FM
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Sorry, but I smirked at this comment:
Lack of response to relays is evidence of bad faith, [...]. Really? In my book, lack of response is evidence of only one thing: Lack of response is evidence of lack of response. Nothing more!
There may be so many reasons why someone may decline to respond that are not bad faith, your conclusion is far fetched at best. - Message was caught by spam filters - Message was accidentally deleted - Message message was not read - Message was considered spam and ignored - Recipient believed the message does not concern him - Recipient is in hospital/on vacation - Recipient got scared by the harsh language used even though he is not actually infringing - Recipient just does not want to deal with this at this time - Recipient choses not to respond And those are just off the top of my head. Best, Volker
Best,
Val
Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com <mailto:vsherman@law.gwu.edu>
------------------------------------------------------------------------ *From:* gnso-ppsai-pdp-wg-bounces@icann.org [gnso-ppsai-pdp-wg-bounces@icann.org] on behalf of Phil Corwin [psc@vlaw-dc.com] *Sent:* Tuesday, November 04, 2014 9:43 AM *To:* Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Yes, Graeme, it is quite useful.
My only question regards this sentence -- "Shouldn't an IP rights holder know who they've allowed to use it and for what? " If "it" is a trademark/brand name, wouldn't the rights holder already know that?
Best, Philip
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/cell***
**
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:*gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Don Blumenthal *Sent:* Tuesday, November 04, 2014 9:36 AM *To:* Graeme Bunton; gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Thanks, Graeme. This summary is very helpful.
Don
*From:*gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Graeme Bunton *Sent:* Monday, November 3, 2014 10:21 PM *To:* gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org> *Subject:* [Gnso-ppsai-pdp-wg] Recap & Moving Forward
For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others.
In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap.
Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups:
String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at
I think it's worthwhile for us to discuss using those terms going forward.
*Re: Allegations of IP Infringement and Disclosure & what constitutes content* Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted.
We collectively batted this around for a bit, main points being:
* the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider.
I don't think we resolved much from this discussion, but perhaps it clarified the positions.
To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy?
The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly.
Which lastly brings us to the discussion on a moderate central course of action.
James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others.
I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back.
Thanks
Graeme
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 ------------------------------------------------------------------------
No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date.
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
that is a great list Volker. You left out "recipient was foolish enough to sign on to all the IANA transition lists and is hopelessly trying to sort their filters, whilst losing vital mail". :-) Stephanie On 2014-11-05, 4:31, Volker Greimann wrote:
Sorry, but I smirked at this comment:
Lack of response to relays is evidence of bad faith, [...]. Really? In my book, lack of response is evidence of only one thing: Lack of response is evidence of lack of response. Nothing more!
There may be so many reasons why someone may decline to respond that are not bad faith, your conclusion is far fetched at best.
- Message was caught by spam filters - Message was accidentally deleted - Message message was not read - Message was considered spam and ignored - Recipient believed the message does not concern him - Recipient is in hospital/on vacation - Recipient got scared by the harsh language used even though he is not actually infringing - Recipient just does not want to deal with this at this time - Recipient choses not to respond
And those are just off the top of my head.
Best,
Volker
Best,
Val
Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com <mailto:vsherman@law.gwu.edu>
------------------------------------------------------------------------ *From:* gnso-ppsai-pdp-wg-bounces@icann.org [gnso-ppsai-pdp-wg-bounces@icann.org] on behalf of Phil Corwin [psc@vlaw-dc.com] *Sent:* Tuesday, November 04, 2014 9:43 AM *To:* Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Yes, Graeme, it is quite useful.
My only question regards this sentence -- "Shouldn't an IP rights holder know who they've allowed to use it and for what? " If "it" is a trademark/brand name, wouldn't the rights holder already know that?
Best, Philip
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/cell***
**
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:*gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Don Blumenthal *Sent:* Tuesday, November 04, 2014 9:36 AM *To:* Graeme Bunton; gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Thanks, Graeme. This summary is very helpful.
Don
*From:*gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Graeme Bunton *Sent:* Monday, November 3, 2014 10:21 PM *To:* gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org> *Subject:* [Gnso-ppsai-pdp-wg] Recap & Moving Forward
For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others.
In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap.
Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups:
String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at
I think it's worthwhile for us to discuss using those terms going forward.
*Re: Allegations of IP Infringement and Disclosure & what constitutes content* Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted.
We collectively batted this around for a bit, main points being:
* the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider.
I don't think we resolved much from this discussion, but perhaps it clarified the positions.
To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy?
The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly.
Which lastly brings us to the discussion on a moderate central course of action.
James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others.
I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back.
Thanks
Graeme
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 ------------------------------------------------------------------------
No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date.
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
Mit freundlichen Grüßen,
Volker A. Greimann - Rechtsabteilung -
Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email:vgreimann@key-systems.net
Web:www.key-systems.net /www.RRPproxy.net www.domaindiscount24.com /www.BrandShelter.com
Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems
Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534
Member of the KEYDRIVE GROUP www.keydrive.lu
Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen.
--------------------------------------------
Should you have any further questions, please do not hesitate to contact us.
Best regards,
Volker A. Greimann - legal department -
Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email:vgreimann@key-systems.net
Web:www.key-systems.net /www.RRPproxy.net www.domaindiscount24.com /www.BrandShelter.com
Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems
CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534
Member of the KEYDRIVE GROUP www.keydrive.lu
This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
None of you seem to have read past what you quoted. Val's point is that it's one thing (of many MANY factors) that may (or may not) contribute to a finding of bad faith. At no point does she claim it's a dispositive factor. I'm sure that no one here believes that. Like she explicitly said... lack of response doesn't conclusively demonstrate rights or lack thereof. Obviously it doesn't. Mischaracterizing statements does everyone in this group a disservice and distracts from the actual points being made. Perhaps Val's point (and if not, my point) is that disclosure is necessary to help rights owners begin a dialogue with the registrant about whether or not they have legitimate rights. UDRP filings and the back and forth that results from that is unduly burdensome to brand owners and registrants when a private dialogue will do. As you, we and other have pointed out, it's not just those we have licensed that have a legitimate right to the name, but how do we know if we don't know who they are/where they are? You are right, it is absolutely a registrants prerogative to choose not to respond to a relay request. But the issue should not end there. I can refuse to respond to a subpoena, or refuse to pay my credit card bill, or refuse to respond to the government if the IRS requests an audit of my taxes. That's not the end of the story, there are consequences to those actions. Perhaps there are consequences to ignoring "legitimate" (whatever we deem that to be) requests for information if certain criteria are met in certain situations. I am not (at this point) advocating one solution or another.. but I would like to see language that suggests "absolutes" disappear from our discussions. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, November 05, 2014 1:32 AM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Sorry, but I smirked at this comment: Lack of response to relays is evidence of bad faith, [...]. Really? In my book, lack of response is evidence of only one thing: Lack of response is evidence of lack of response. Nothing more! There may be so many reasons why someone may decline to respond that are not bad faith, your conclusion is far fetched at best. - Message was caught by spam filters - Message was accidentally deleted - Message message was not read - Message was considered spam and ignored - Recipient believed the message does not concern him - Recipient is in hospital/on vacation - Recipient got scared by the harsh language used even though he is not actually infringing - Recipient just does not want to deal with this at this time - Recipient choses not to respond And those are just off the top of my head. Best, Volker Best, Val Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com<mailto:vsherman@law.gwu.edu> ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org>] on behalf of Phil Corwin [psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>] Sent: Tuesday, November 04, 2014 9:43 AM To: Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Yes, Graeme, it is quite useful. My only question regards this sentence - "Shouldn't an IP rights holder know who they've allowed to use it and for what? " If "it" is a trademark/brand name, wouldn't the rights holder already know that? Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Don Blumenthal Sent: Tuesday, November 04, 2014 9:36 AM To: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Thanks, Graeme. This summary is very helpful. Don From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Monday, November 3, 2014 10:21 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others. In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap. Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups: String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at I think it's worthwhile for us to discuss using those terms going forward. Re: Allegations of IP Infringement and Disclosure & what constitutes content Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted. We collectively batted this around for a bit, main points being: * the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider. I don't think we resolved much from this discussion, but perhaps it clarified the positions. To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy? The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly. Which lastly brings us to the discussion on a moderate central course of action. James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others. I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back. Thanks Graeme -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
+1 to Kiran. When I write that lack of a response to relays of cease and desist letters is a factor evidencing bad faith, I am not basing it on personal opinions. It is a factor that has long been accepted in UDRP decisions: (1) Pearson Education, Inc v. CTP Internacional; Private Registration at Directi Internet Solutions Pvt. Ltd. and <scottforesmanandcompany.com<http://scottforesmanandcompany.com>>, WIPO/D2009-0266 (noting that privacy-shielded registrant's failure to reply to cease-and-desist letter was a "compounding" factor in finding bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-0266.html (2) Advance Magazine Publishers v. MSA, Inc. and Moniker Privacy Servs., WIPO/D2007-1743 (observing that privacy-shielded registrant's failure to reply to numerous communications regarding its trademark infringement was prominent among several factors leading to a finding of bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-1743.html (3) Fifth Third Bancorp v. Secure Whois Information Servs., WIPO/D2006-0696 (finding strong evidence of bad faith in proxy-shielded respondent's failure to respond to correspondence and provision of faulty contact information). http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0696.html. (4) TDS Telecomm'cns Corp. v. Nevis Domains and Moniker Privacy Servs, .WIPO/D2006-1620 (finding bad faith in a privacy-shielded respondent's failure to reply to cease-and-desist letters addressed to its privacy service provider). http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-1620.htmlhttp:/... Best, Val Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com<mailto:vsherman@law.gwu.edu> ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org [gnso-ppsai-pdp-wg-bounces@icann.org] on behalf of Kiran Malancharuvil [Kiran.Malancharuvil@markmonitor.com] Sent: Wednesday, November 05, 2014 4:31 PM To: Volker Greimann; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward None of you seem to have read past what you quoted. Val’s point is that it’s one thing (of many MANY factors) that may (or may not) contribute to a finding of bad faith. At no point does she claim it’s a dispositive factor. I’m sure that no one here believes that. Like she explicitly said… lack of response doesn’t conclusively demonstrate rights or lack thereof. Obviously it doesn’t. Mischaracterizing statements does everyone in this group a disservice and distracts from the actual points being made. Perhaps Val’s point (and if not, my point) is that disclosure is necessary to help rights owners begin a dialogue with the registrant about whether or not they have legitimate rights. UDRP filings and the back and forth that results from that is unduly burdensome to brand owners and registrants when a private dialogue will do. As you, we and other have pointed out, it’s not just those we have licensed that have a legitimate right to the name, but how do we know if we don’t know who they are/where they are? You are right, it is absolutely a registrants prerogative to choose not to respond to a relay request. But the issue should not end there. I can refuse to respond to a subpoena, or refuse to pay my credit card bill, or refuse to respond to the government if the IRS requests an audit of my taxes. That’s not the end of the story, there are consequences to those actions. Perhaps there are consequences to ignoring “legitimate” (whatever we deem that to be) requests for information if certain criteria are met in certain situations. I am not (at this point) advocating one solution or another.. but I would like to see language that suggests “absolutes” disappear from our discussions. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, November 05, 2014 1:32 AM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Sorry, but I smirked at this comment: Lack of response to relays is evidence of bad faith, [...]. Really? In my book, lack of response is evidence of only one thing: Lack of response is evidence of lack of response. Nothing more! There may be so many reasons why someone may decline to respond that are not bad faith, your conclusion is far fetched at best. - Message was caught by spam filters - Message was accidentally deleted - Message message was not read - Message was considered spam and ignored - Recipient believed the message does not concern him - Recipient is in hospital/on vacation - Recipient got scared by the harsh language used even though he is not actually infringing - Recipient just does not want to deal with this at this time - Recipient choses not to respond And those are just off the top of my head. Best, Volker Best, Val Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com<mailto:vsherman@law.gwu.edu> ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org>] on behalf of Phil Corwin [psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>] Sent: Tuesday, November 04, 2014 9:43 AM To: Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Yes, Graeme, it is quite useful. My only question regards this sentence – “Shouldn't an IP rights holder know who they've allowed to use it and for what? “ If “it” is a trademark/brand name, wouldn’t the rights holder already know that? Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Don Blumenthal Sent: Tuesday, November 04, 2014 9:36 AM To: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Thanks, Graeme. This summary is very helpful. Don From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Monday, November 3, 2014 10:21 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others. In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap. Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups: String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at I think it's worthwhile for us to discuss using those terms going forward. Re: Allegations of IP Infringement and Disclosure & what constitutes content Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted. We collectively batted this around for a bit, main points being: * the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider. I don't think we resolved much from this discussion, but perhaps it clarified the positions. To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy? The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly. Which lastly brings us to the discussion on a moderate central course of action. James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others. I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back. Thanks Graeme -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
Hi Valeriya, now you say it may be a factor in determining bad faith, but that is not the same as what you initially wrote and I objected to. You originally wrote: "Lack of response to relays *is *evidence of bad faith, but it doesn't obviate the need for disclosure." That statement as originally written simply is not true. Best, Volker Am 05.11.2014 23:22, schrieb Valeriya Sherman:
+1 to Kiran.
When I write that lack of a response to relays of cease and desist letters is a factor evidencing bad faith, I am not basing it on personal opinions. It is a factor that has long been accepted in UDRP decisions:
(1) /Pearson Education, Inc v. CTP Internacional; Private Registration at Directi Internet Solutions Pvt. Ltd. and <//scottforesmanandcompany.com/ <http://scottforesmanandcompany.com>/>,/ WIPO/D2009-0266 (noting that privacy-shielded registrant's failure to reply to cease-and-desist letter was a "compounding" factor in finding bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-0266.html
(2) /Advance Magazine Publishers v. MSA, Inc. and Moniker Privacy Servs./, WIPO/D2007-1743 (observing that privacy-shielded registrant's failure to reply to numerous communications regarding its trademark infringement was prominent among several factors leading to a finding of bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-1743.html
(3) /Fifth Third Bancorp v. Secure Whois Information Servs., /WIPO/D2006-0696 (finding strong evidence of bad faith in proxy-shielded respondent's failure to respond to correspondence and provision of faulty contact information). http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0696.html.
(4) /TDS Telecomm'cns Corp. v. Nevis Domains and Moniker Privacy Servs/, .WIPO/D2006-1620 (finding bad faith in a privacy-shielded respondent's failure to reply to cease-and-desist letters addressed to its privacy service provider). http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-1620.htmlhttp:/...
Best, Val
Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com <mailto:vsherman@law.gwu.edu> ------------------------------------------------------------------------ *From:* gnso-ppsai-pdp-wg-bounces@icann.org [gnso-ppsai-pdp-wg-bounces@icann.org] on behalf of Kiran Malancharuvil [Kiran.Malancharuvil@markmonitor.com] *Sent:* Wednesday, November 05, 2014 4:31 PM *To:* Volker Greimann; gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
None of you seem to have read past what you quoted. Val’s point is that it’s one thing (of many MANY factors) that may (or may not) contribute to a finding of bad faith. At no point does she claim it’s a dispositive factor. I’m sure that no one here believes that. Like she explicitly said… lack of response doesn’t conclusively demonstrate rights or lack thereof. Obviously it doesn’t. Mischaracterizing statements does everyone in this group a disservice and distracts from the actual points being made.
Perhaps Val’s point (and if not, my point) is that disclosure is necessary to help rights owners begin a dialogue with the registrant about whether or not they have legitimate rights. UDRP filings and the back and forth that results from that is unduly burdensome to brand owners and registrants when a private dialogue will do. As you, we and other have pointed out, it’s not just those we have licensed that have a legitimate right to the name, but how do we know if we don’t know who they are/where they are?
You are right, it is absolutely a registrants prerogative to choose not to respond to a relay request. But the issue should not end there. I can refuse to respond to a subpoena, or refuse to pay my credit card bill, or refuse to respond to the government if the IRS requests an audit of my taxes. That’s not the end of the story, there are consequences to those actions. Perhaps there are consequences to ignoring “legitimate” (whatever we deem that to be) requests for information if certain criteria are met in certain situations. I am not (at this point) advocating one solution or another.. but I would like to see language that suggests “absolutes” disappear from our discussions.
Thanks,
Kiran
*Kiran Malancharuvil*
Policy Counselor
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
www.markmonitor.com <http://www.markmonitor.com/>
*From:*gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Volker Greimann *Sent:* Wednesday, November 05, 2014 1:32 AM *To:* gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Sorry, but I smirked at this comment:
Lack of response to relays is evidence of bad faith, [...].
Really? In my book, lack of response is evidence of only one thing: Lack of response is evidence of lack of response. Nothing more!
There may be so many reasons why someone may decline to respond that are not bad faith, your conclusion is far fetched at best.
- Message was caught by spam filters - Message was accidentally deleted - Message message was not read - Message was considered spam and ignored - Recipient believed the message does not concern him - Recipient is in hospital/on vacation - Recipient got scared by the harsh language used even though he is not actually infringing - Recipient just does not want to deal with this at this time - Recipient choses not to respond
And those are just off the top of my head.
Best,
Volker
Best,
Val
Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com <mailto:vsherman@law.gwu.edu>
------------------------------------------------------------------------
*From:*gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org>] on behalf of Phil Corwin [psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>] *Sent:* Tuesday, November 04, 2014 9:43 AM *To:* Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org> *Subject:* Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Yes, Graeme, it is quite useful.
My only question regards this sentence – “Shouldn't an IP rights holder know who they've allowed to use it and for what? “ If “it” is a trademark/brand name, wouldn’t the rights holder already know that?
Best, Philip
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/cell*
**
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:*gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Don Blumenthal *Sent:* Tuesday, November 04, 2014 9:36 AM *To:* Graeme Bunton; gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org> *Subject:* Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Thanks, Graeme. This summary is very helpful.
Don
*From:*gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Graeme Bunton *Sent:* Monday, November 3, 2014 10:21 PM *To:* gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org> *Subject:* [Gnso-ppsai-pdp-wg] Recap & Moving Forward
For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others.
In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap.
Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups:
String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at
I think it's worthwhile for us to discuss using those terms going forward.
*Re: Allegations of IP Infringement and Disclosure & what constitutes content* Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted.
We collectively batted this around for a bit, main points being:
* the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider.
I don't think we resolved much from this discussion, but perhaps it clarified the positions.
To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy?
The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly.
Which lastly brings us to the discussion on a moderate central course of action.
James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others.
I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back.
Thanks
Graeme
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 ------------------------------------------------------------------------
No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date.
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org <mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
Mit freundlichen Grüßen,
Volker A. Greimann - Rechtsabteilung -
Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email:vgreimann@key-systems.net <mailto:vgreimann@key-systems.net>
Web:www.key-systems.net <http://www.key-systems.net> /www.RRPproxy.net <http://www.RRPproxy.net> www.domaindiscount24.com <http://www.domaindiscount24.com> /www.BrandShelter.com <http://www.BrandShelter.com>
Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems <http://www.facebook.com/KeySystems> www.twitter.com/key_systems <http://www.twitter.com/key_systems>
Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534
Member of the KEYDRIVE GROUP www.keydrive.lu <http://www.keydrive.lu>
Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen.
--------------------------------------------
Should you have any further questions, please do not hesitate to contact us.
Best regards,
Volker A. Greimann - legal department -
Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email:vgreimann@key-systems.net <mailto:vgreimann@key-systems.net>
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-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
If I may, I initially read Val's wording the way that Volker did. After following the thread, I don't think that the intent was to be quite so conclusory. "Indicator" or something even fuzzier might have fit better. On another point, while UDRP and URS seem to have dominated recent discussions on E and F, relay and reveal matters are broader than IP. I'm concerned about using UDRP decisions to guide our definitions. Don From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Friday, November 7, 2014 6:05 AM To: Valeriya Sherman; Kiran Malancharuvil; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Hi Valeriya, now you say it may be a factor in determining bad faith, but that is not the same as what you initially wrote and I objected to. You originally wrote: "Lack of response to relays is evidence of bad faith, but it doesn't obviate the need for disclosure." That statement as originally written simply is not true. Best, Volker Am 05.11.2014 23:22, schrieb Valeriya Sherman: +1 to Kiran. When I write that lack of a response to relays of cease and desist letters is a factor evidencing bad faith, I am not basing it on personal opinions. It is a factor that has long been accepted in UDRP decisions: (1) Pearson Education, Inc v. CTP Internacional; Private Registration at Directi Internet Solutions Pvt. Ltd. and <scottforesmanandcompany.com<http://scottforesmanandcompany.com>>, WIPO/D2009-0266 (noting that privacy-shielded registrant's failure to reply to cease-and-desist letter was a "compounding" factor in finding bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-0266.html (2) Advance Magazine Publishers v. MSA, Inc. and Moniker Privacy Servs., WIPO/D2007-1743 (observing that privacy-shielded registrant's failure to reply to numerous communications regarding its trademark infringement was prominent among several factors leading to a finding of bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-1743.html (3) Fifth Third Bancorp v. Secure Whois Information Servs., WIPO/D2006-0696 (finding strong evidence of bad faith in proxy-shielded respondent's failure to respond to correspondence and provision of faulty contact information). http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0696.html. (4) TDS Telecomm'cns Corp. v. Nevis Domains and Moniker Privacy Servs, .WIPO/D2006-1620 (finding bad faith in a privacy-shielded respondent's failure to reply to cease-and-desist letters addressed to its privacy service provider). http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-1620.htmlhttp:/... Best, Val Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com<mailto:vsherman@law.gwu.edu> ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org>] on behalf of Kiran Malancharuvil [Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>] Sent: Wednesday, November 05, 2014 4:31 PM To: Volker Greimann; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward None of you seem to have read past what you quoted. Val's point is that it's one thing (of many MANY factors) that may (or may not) contribute to a finding of bad faith. At no point does she claim it's a dispositive factor. I'm sure that no one here believes that. Like she explicitly said... lack of response doesn't conclusively demonstrate rights or lack thereof. Obviously it doesn't. Mischaracterizing statements does everyone in this group a disservice and distracts from the actual points being made. Perhaps Val's point (and if not, my point) is that disclosure is necessary to help rights owners begin a dialogue with the registrant about whether or not they have legitimate rights. UDRP filings and the back and forth that results from that is unduly burdensome to brand owners and registrants when a private dialogue will do. As you, we and other have pointed out, it's not just those we have licensed that have a legitimate right to the name, but how do we know if we don't know who they are/where they are? You are right, it is absolutely a registrants prerogative to choose not to respond to a relay request. But the issue should not end there. I can refuse to respond to a subpoena, or refuse to pay my credit card bill, or refuse to respond to the government if the IRS requests an audit of my taxes. That's not the end of the story, there are consequences to those actions. Perhaps there are consequences to ignoring "legitimate" (whatever we deem that to be) requests for information if certain criteria are met in certain situations. I am not (at this point) advocating one solution or another.. but I would like to see language that suggests "absolutes" disappear from our discussions. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, November 05, 2014 1:32 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Sorry, but I smirked at this comment: Lack of response to relays is evidence of bad faith, [...]. Really? In my book, lack of response is evidence of only one thing: Lack of response is evidence of lack of response. Nothing more! There may be so many reasons why someone may decline to respond that are not bad faith, your conclusion is far fetched at best. - Message was caught by spam filters - Message was accidentally deleted - Message message was not read - Message was considered spam and ignored - Recipient believed the message does not concern him - Recipient is in hospital/on vacation - Recipient got scared by the harsh language used even though he is not actually infringing - Recipient just does not want to deal with this at this time - Recipient choses not to respond And those are just off the top of my head. Best, Volker Best, Val Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com<mailto:vsherman@law.gwu.edu> ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org>] on behalf of Phil Corwin [psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>] Sent: Tuesday, November 04, 2014 9:43 AM To: Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Yes, Graeme, it is quite useful. My only question regards this sentence - "Shouldn't an IP rights holder know who they've allowed to use it and for what? " If "it" is a trademark/brand name, wouldn't the rights holder already know that? Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Don Blumenthal Sent: Tuesday, November 04, 2014 9:36 AM To: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Thanks, Graeme. This summary is very helpful. Don From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Monday, November 3, 2014 10:21 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others. In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap. Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups: String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at I think it's worthwhile for us to discuss using those terms going forward. Re: Allegations of IP Infringement and Disclosure & what constitutes content Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted. We collectively batted this around for a bit, main points being: * the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider. I don't think we resolved much from this discussion, but perhaps it clarified the positions. To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy? The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly. Which lastly brings us to the discussion on a moderate central course of action. James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others. I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back. Thanks Graeme -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone. -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
The term "evidence" is correct. As the Federal Rules of Evidence make clear, "Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Federal Rule of Evidence 401. It does not have to be conclusive to be evidence; it only has to be relevant. If my memory serves me correctly, we started discussing UDRP to address the option of Reveal when confronted with allegations of infringement in the domain name itself (i.e., for string issues). Here, UDRP decisions are useful in our deliberations because relay and reveal are very often a prelude to a UDRP proceeding. UDRP decisions provide well-established and impartial criteria that help us identify what information about a customer will help the Requestor determine if a UDRP proceeding is warranted. David David K. Heasley Silverberg, Goldman & Bikoff, LLP 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel. 202.944.2339 Fax 202.944.3306 dheasley@sgbdc.com ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Don Blumenthal Sent: Friday, November 07, 2014 9:38 AM To: Volker Greimann; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward If I may, I initially read Val's wording the way that Volker did. After following the thread, I don't think that the intent was to be quite so conclusory. "Indicator" or something even fuzzier might have fit better. On another point, while UDRP and URS seem to have dominated recent discussions on E and F, relay and reveal matters are broader than IP. I'm concerned about using UDRP decisions to guide our definitions. Don From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Friday, November 7, 2014 6:05 AM To: Valeriya Sherman; Kiran Malancharuvil; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Hi Valeriya, now you say it may be a factor in determining bad faith, but that is not the same as what you initially wrote and I objected to. You originally wrote: "Lack of response to relays is evidence of bad faith, but it doesn't obviate the need for disclosure." That statement as originally written simply is not true. Best, Volker Am 05.11.2014 23:22, schrieb Valeriya Sherman: +1 to Kiran. When I write that lack of a response to relays of cease and desist letters is a factor evidencing bad faith, I am not basing it on personal opinions. It is a factor that has long been accepted in UDRP decisions: (1) Pearson Education, Inc v. CTP Internacional; Private Registration at Directi Internet Solutions Pvt. Ltd. and <scottforesmanandcompany.com<http://scottforesmanandcompany.com>>, WIPO/D2009-0266 (noting that privacy-shielded registrant's failure to reply to cease-and-desist letter was a "compounding" factor in finding bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-0266.html (2) Advance Magazine Publishers v. MSA, Inc. and Moniker Privacy Servs., WIPO/D2007-1743 (observing that privacy-shielded registrant's failure to reply to numerous communications regarding its trademark infringement was prominent among several factors leading to a finding of bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-1743.html (3) Fifth Third Bancorp v. Secure Whois Information Servs., WIPO/D2006-0696 (finding strong evidence of bad faith in proxy-shielded respondent's failure to respond to correspondence and provision of faulty contact information). http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0696.html. (4) TDS Telecomm'cns Corp. v. Nevis Domains and Moniker Privacy Servs, .WIPO/D2006-1620 (finding bad faith in a privacy-shielded respondent's failure to reply to cease-and-desist letters addressed to its privacy service provider). http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-1620.htmlhttp:/... Best, Val Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com<mailto:vsherman@law.gwu.edu> ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org>] on behalf of Kiran Malancharuvil [Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>] Sent: Wednesday, November 05, 2014 4:31 PM To: Volker Greimann; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward None of you seem to have read past what you quoted. Val's point is that it's one thing (of many MANY factors) that may (or may not) contribute to a finding of bad faith. At no point does she claim it's a dispositive factor. I'm sure that no one here believes that. Like she explicitly said... lack of response doesn't conclusively demonstrate rights or lack thereof. Obviously it doesn't. Mischaracterizing statements does everyone in this group a disservice and distracts from the actual points being made. Perhaps Val's point (and if not, my point) is that disclosure is necessary to help rights owners begin a dialogue with the registrant about whether or not they have legitimate rights. UDRP filings and the back and forth that results from that is unduly burdensome to brand owners and registrants when a private dialogue will do. As you, we and other have pointed out, it's not just those we have licensed that have a legitimate right to the name, but how do we know if we don't know who they are/where they are? You are right, it is absolutely a registrants prerogative to choose not to respond to a relay request. But the issue should not end there. I can refuse to respond to a subpoena, or refuse to pay my credit card bill, or refuse to respond to the government if the IRS requests an audit of my taxes. That's not the end of the story, there are consequences to those actions. Perhaps there are consequences to ignoring "legitimate" (whatever we deem that to be) requests for information if certain criteria are met in certain situations. I am not (at this point) advocating one solution or another.. but I would like to see language that suggests "absolutes" disappear from our discussions. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, November 05, 2014 1:32 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Sorry, but I smirked at this comment: Lack of response to relays is evidence of bad faith, [...]. Really? In my book, lack of response is evidence of only one thing: Lack of response is evidence of lack of response. Nothing more! There may be so many reasons why someone may decline to respond that are not bad faith, your conclusion is far fetched at best. - Message was caught by spam filters - Message was accidentally deleted - Message message was not read - Message was considered spam and ignored - Recipient believed the message does not concern him - Recipient is in hospital/on vacation - Recipient got scared by the harsh language used even though he is not actually infringing - Recipient just does not want to deal with this at this time - Recipient choses not to respond And those are just off the top of my head. Best, Volker Best, Val Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com<mailto:vsherman@law.gwu.edu> ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org>] on behalf of Phil Corwin [psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>] Sent: Tuesday, November 04, 2014 9:43 AM To: Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Yes, Graeme, it is quite useful. My only question regards this sentence - "Shouldn't an IP rights holder know who they've allowed to use it and for what? " If "it" is a trademark/brand name, wouldn't the rights holder already know that? Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Don Blumenthal Sent: Tuesday, November 04, 2014 9:36 AM To: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Thanks, Graeme. This summary is very helpful. Don From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Monday, November 3, 2014 10:21 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others. In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap. Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups: String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at I think it's worthwhile for us to discuss using those terms going forward. Re: Allegations of IP Infringement and Disclosure & what constitutes content Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted. We collectively batted this around for a bit, main points being: * the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider. I don't think we resolved much from this discussion, but perhaps it clarified the positions. To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy? The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly. Which lastly brings us to the discussion on a moderate central course of action. James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others. I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back. Thanks Graeme -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone. -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
I wrote a couple of weeks ago that we need to avoid using legal terminology and here is a prime example of why. Would anybody on the list from other countries care to quote your relevant legal codes? Can anybody provide cites to the rules in the ?? unrepresented countries in the world where p/p providers might set up shop? We are having discussions here within a group that has both lawyers and non-lawyers. We are here to establish policies, not legal requirements. We need to use terms in ways that will be helpful to the discussions. Being useful in guiding a judge or opposing counsel isn't the goal. UDRP processes are helpful as guides, as are lessons that we can take from law enforcement, private anti-abuse, private consumer protection, and whatever other communities might use relay or reveal. I don't think that citing decisions to establish definitions for terms is helpful because the criteria used from one arena to another may vary. Don From: David Heasley [mailto:dheasley@sgbdc.com] Sent: Friday, November 7, 2014 11:53 AM To: Don Blumenthal; Volker Greimann; gnso-ppsai-pdp-wg@icann.org Subject: RE: [Gnso-ppsai-pdp-wg] Recap & Moving Forward The term "evidence" is correct. As the Federal Rules of Evidence make clear, "Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Federal Rule of Evidence 401. It does not have to be conclusive to be evidence; it only has to be relevant. If my memory serves me correctly, we started discussing UDRP to address the option of Reveal when confronted with allegations of infringement in the domain name itself (i.e., for string issues). Here, UDRP decisions are useful in our deliberations because relay and reveal are very often a prelude to a UDRP proceeding. UDRP decisions provide well-established and impartial criteria that help us identify what information about a customer will help the Requestor determine if a UDRP proceeding is warranted. David David K. Heasley Silverberg, Goldman & Bikoff, LLP 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel. 202.944.2339 Fax 202.944.3306 dheasley@sgbdc.com<mailto:dheasley@sgbdc.com> ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Don Blumenthal Sent: Friday, November 07, 2014 9:38 AM To: Volker Greimann; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward If I may, I initially read Val's wording the way that Volker did. After following the thread, I don't think that the intent was to be quite so conclusory. "Indicator" or something even fuzzier might have fit better. On another point, while UDRP and URS seem to have dominated recent discussions on E and F, relay and reveal matters are broader than IP. I'm concerned about using UDRP decisions to guide our definitions. Don From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Friday, November 7, 2014 6:05 AM To: Valeriya Sherman; Kiran Malancharuvil; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Hi Valeriya, now you say it may be a factor in determining bad faith, but that is not the same as what you initially wrote and I objected to. You originally wrote: "Lack of response to relays is evidence of bad faith, but it doesn't obviate the need for disclosure." That statement as originally written simply is not true. Best, Volker Am 05.11.2014 23:22, schrieb Valeriya Sherman: +1 to Kiran. When I write that lack of a response to relays of cease and desist letters is a factor evidencing bad faith, I am not basing it on personal opinions. It is a factor that has long been accepted in UDRP decisions: (1) Pearson Education, Inc v. CTP Internacional; Private Registration at Directi Internet Solutions Pvt. Ltd. and <scottforesmanandcompany.com<http://scottforesmanandcompany.com>>, WIPO/D2009-0266 (noting that privacy-shielded registrant's failure to reply to cease-and-desist letter was a "compounding" factor in finding bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-0266.html (2) Advance Magazine Publishers v. MSA, Inc. and Moniker Privacy Servs., WIPO/D2007-1743 (observing that privacy-shielded registrant's failure to reply to numerous communications regarding its trademark infringement was prominent among several factors leading to a finding of bad faith). http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-1743.html (3) Fifth Third Bancorp v. Secure Whois Information Servs., WIPO/D2006-0696 (finding strong evidence of bad faith in proxy-shielded respondent's failure to respond to correspondence and provision of faulty contact information). http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0696.html. (4) TDS Telecomm'cns Corp. v. Nevis Domains and Moniker Privacy Servs, .WIPO/D2006-1620 (finding bad faith in a privacy-shielded respondent's failure to reply to cease-and-desist letters addressed to its privacy service provider). http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-1620.htmlhttp:/... Best, Val Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com<mailto:vsherman@law.gwu.edu> ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org>] on behalf of Kiran Malancharuvil [Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>] Sent: Wednesday, November 05, 2014 4:31 PM To: Volker Greimann; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward None of you seem to have read past what you quoted. Val's point is that it's one thing (of many MANY factors) that may (or may not) contribute to a finding of bad faith. At no point does she claim it's a dispositive factor. I'm sure that no one here believes that. Like she explicitly said... lack of response doesn't conclusively demonstrate rights or lack thereof. Obviously it doesn't. Mischaracterizing statements does everyone in this group a disservice and distracts from the actual points being made. Perhaps Val's point (and if not, my point) is that disclosure is necessary to help rights owners begin a dialogue with the registrant about whether or not they have legitimate rights. UDRP filings and the back and forth that results from that is unduly burdensome to brand owners and registrants when a private dialogue will do. As you, we and other have pointed out, it's not just those we have licensed that have a legitimate right to the name, but how do we know if we don't know who they are/where they are? You are right, it is absolutely a registrants prerogative to choose not to respond to a relay request. But the issue should not end there. I can refuse to respond to a subpoena, or refuse to pay my credit card bill, or refuse to respond to the government if the IRS requests an audit of my taxes. That's not the end of the story, there are consequences to those actions. Perhaps there are consequences to ignoring "legitimate" (whatever we deem that to be) requests for information if certain criteria are met in certain situations. I am not (at this point) advocating one solution or another.. but I would like to see language that suggests "absolutes" disappear from our discussions. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Wednesday, November 05, 2014 1:32 AM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Sorry, but I smirked at this comment: Lack of response to relays is evidence of bad faith, [...]. Really? In my book, lack of response is evidence of only one thing: Lack of response is evidence of lack of response. Nothing more! There may be so many reasons why someone may decline to respond that are not bad faith, your conclusion is far fetched at best. - Message was caught by spam filters - Message was accidentally deleted - Message message was not read - Message was considered spam and ignored - Recipient believed the message does not concern him - Recipient is in hospital/on vacation - Recipient got scared by the harsh language used even though he is not actually infringing - Recipient just does not want to deal with this at this time - Recipient choses not to respond And those are just off the top of my head. Best, Volker Best, Val Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com<mailto:vsherman@law.gwu.edu> ________________________________ From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org>] on behalf of Phil Corwin [psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>] Sent: Tuesday, November 04, 2014 9:43 AM To: Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Yes, Graeme, it is quite useful. My only question regards this sentence - "Shouldn't an IP rights holder know who they've allowed to use it and for what? " If "it" is a trademark/brand name, wouldn't the rights holder already know that? Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Don Blumenthal Sent: Tuesday, November 04, 2014 9:36 AM To: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward Thanks, Graeme. This summary is very helpful. Don From: gnso-ppsai-pdp-wg-bounces@icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Graeme Bunton Sent: Monday, November 3, 2014 10:21 PM To: gnso-ppsai-pdp-wg@icann.org<mailto:gnso-ppsai-pdp-wg@icann.org> Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others. In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap. Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups: String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at I think it's worthwhile for us to discuss using those terms going forward. Re: Allegations of IP Infringement and Disclosure & what constitutes content Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted. We collectively batted this around for a bit, main points being: * the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider. I don't think we resolved much from this discussion, but perhaps it clarified the positions. To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy? The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly. Which lastly brings us to the discussion on a moderate central course of action. James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others. I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back. Thanks Graeme -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. 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Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. 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On 6 Nov 2014, at 5:31 am, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:
None of you seem to have read past what you quoted. Val’s point is that it’s one thing (of many MANY factors) that may (or may not) contribute to a finding of bad faith. At no point does she claim it’s a dispositive factor. I’m sure that no one here believes that. Like she explicitly said… lack of response doesn’t conclusively demonstrate rights or lack thereof. Obviously it doesn’t. Mischaracterizing statements does everyone in this group a disservice and distracts from the actual points being made.
Perhaps Val’s point (and if not, my point) is that disclosure is necessary to help rights owners begin a dialogue with the registrant about whether or not they have legitimate rights.
And I repeat that disclosure would be helpful, but helpful is not necessary. Relay is sufficient to begin a dialogue. It is true that sometimes people may not reply to a request via relay, but you can't force someone to engage in a dialogue.
UDRP filings and the back and forth that results from that is unduly burdensome to brand owners and registrants when a private dialogue will do.
Relay is designed specifically to allow a private dialogue without compromising the privacy rights that the PPP customer has paid for. If the possibility of dialogue was prevented entirely, then that might be unduly burdensome, but asking that that initial private dialogue take place in a way that respects the privacy rights that the registrant has paid for, and to which (at this point) there has been no finding to indicate they are entitled to, does not seem unduly burdensome.
As you, we and other have pointed out, it’s not just those we have licensed that have a legitimate right to the name, but how do we know if we don’t know who they are/where they are?
And as I pointed out - knowing who they are/where they are does not uniquely determine legitimate use, and wanting to know if they have a legitimate use is information that should be useful to the requester, but not information that the customer should be compelled to disclose. (even when a UDRP is filed, the customer is not compelled to disclose if they have a legitimate use - they can always choose not to contest the UDRP and give up the domain, even if they have a legitimate use. It would certainly be unusual for them to do so, but not implausible - there are situations in which choosing to disclose information, which could be used to target other action, might not be preferable to giving up the domain name).
You are right, it is absolutely a registrants prerogative to choose not to respond to a relay request. But the issue should not end there.
Indeed. You can initiate a UDRP, for example, which is the action you have been contemplating.
I can refuse to respond to a subpoena, or refuse to pay my credit card bill, or refuse to respond to the government if the IRS requests an audit of my taxes. That’s not the end of the story, there are consequences to those actions.
Indeed (though noting only one of those three is a civil matter directly comparable). And those consequences may well be that you choose to initiate a UDRP, and as you point out lack of response to a relay request will not help their case, and may well help contribute to a finding of bad faith (though, as you say, it would be one factor amongst many, lack of response to a relay request would not be sufficient in itself).
Perhaps there are consequences to ignoring “legitimate” (whatever we deem that to be) requests for information if certain criteria are met in certain situations. I am not (at this point) advocating one solution or another.. but I would like to see language that suggests “absolutes” disappear from our discussions.
If you suggest a specific proposal, I'm sure many people will be interested in looking at it. But all I am saying is that 'it would be helpful to someone contemplating filing a UDRP' is clearly not sufficient cause to overrule the privacy rights the customer has paid for. David
I agree with David's response. I would add that the three examples of non response cited below (refusing to respond to a subpoena, pay my credit card bill, or respond to an IRS audit) are generally speaking unlawful (caveat because I am uncertain of specifics of US tax law, and the credit card bill may be inaccurate, in which case contention is certainly not unlawful). As David points out, only the credit card is a civil matter. I think we have to be extremely careful in crafting our recommendations, not to make it "unlawful" to refuse to become engaged in a conversation with a private actor, simply because they feel a burning desire to communicate with us. Refusing to respond to a Court order, duly relayed by the PP provider, would be another matter entirely. We should not mix apples and oranges. Stephanie Perrin On 2014-11-05, 21:55, David Cake wrote:
On 6 Nov 2014, at 5:31 am, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com <mailto:Kiran.Malancharuvil@markmonitor.com>> wrote:
None of you seem to have read past what you quoted. Val's point is that it's one thing (of many MANY factors) that may (or may not) contribute to a finding of bad faith. At no point does she claim it's a dispositive factor. I'm sure that no one here believes that. Like she explicitly said... lack of response doesn't conclusively demonstrate rights or lack thereof. Obviously it doesn't. Mischaracterizing statements does everyone in this group a disservice and distracts from the actual points being made. Perhaps Val's point (and if not, my point) is that disclosure is necessary to help rights owners begin a dialogue with the registrant about whether or not they have legitimate rights.
And I repeat that disclosure would be helpful, but helpful is not necessary. Relay is sufficient to begin a dialogue. It is true that sometimes people may not reply to a request via relay, but you can't force someone to engage in a dialogue.
UDRP filings and the back and forth that results from that is unduly burdensome to brand owners and registrants when a private dialogue will do. Relay is designed specifically to allow a private dialogue without compromising the privacy rights that the PPP customer has paid for. If the possibility of dialogue was prevented entirely, then that might be unduly burdensome, but asking that that initial private dialogue take place in a way that respects the privacy rights that the registrant has paid for, and to which (at this point) there has been no finding to indicate they are entitled to, does not seem unduly burdensome.
SNIP
I can refuse to respond to a subpoena, or refuse to pay my credit card bill, or refuse to respond to the government if the IRS requests an audit of my taxes. That's not the end of the story, there are consequences to those actions.
Indeed (though noting only one of those three is a civil matter directly comparable). And those consequences may well be that you choose to initiate a UDRP, and as you point out lack of response to a relay request will not help their case, and may well help contribute to a finding of bad faith (though, as you say, it would be one factor amongst many, lack of response to a relay request would not be sufficient in itself).
Perhaps there are consequences to ignoring "legitimate" (whatever we deem that to be) requests for information if certain criteria are met in certain situations. I am not (at this point) advocating one solution or another.. but I would like to see language that suggests "absolutes" disappear from our discussions.
If you suggest a specific proposal, I'm sure many people will be interested in looking at it.
But all I am saying is that 'it would be helpful to someone contemplating filing a UDRP' is clearly not sufficient cause to overrule the privacy rights the customer has paid for.
David
_______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
Dear Kiran, please do not make assumptions on what others have or have not read, you'd be wrong. I read the entire message, and just because I focussed on one part of it in my response does not mean I did not read the rest. Best, Volker Am 05.11.2014 22:31, schrieb Kiran Malancharuvil:
None of you seem to have read past what you quoted. Val's point is that it's one thing (of many MANY factors) that may (or may not) contribute to a finding of bad faith. At no point does she claim it's a dispositive factor. I'm sure that no one here believes that. Like she explicitly said... lack of response doesn't conclusively demonstrate rights or lack thereof. Obviously it doesn't. Mischaracterizing statements does everyone in this group a disservice and distracts from the actual points being made.
Perhaps Val's point (and if not, my point) is that disclosure is necessary to help rights owners begin a dialogue with the registrant about whether or not they have legitimate rights. UDRP filings and the back and forth that results from that is unduly burdensome to brand owners and registrants when a private dialogue will do. As you, we and other have pointed out, it's not just those we have licensed that have a legitimate right to the name, but how do we know if we don't know who they are/where they are?
You are right, it is absolutely a registrants prerogative to choose not to respond to a relay request. But the issue should not end there. I can refuse to respond to a subpoena, or refuse to pay my credit card bill, or refuse to respond to the government if the IRS requests an audit of my taxes. That's not the end of the story, there are consequences to those actions. Perhaps there are consequences to ignoring "legitimate" (whatever we deem that to be) requests for information if certain criteria are met in certain situations. I am not (at this point) advocating one solution or another.. but I would like to see language that suggests "absolutes" disappear from our discussions.
Thanks,
Kiran
*Kiran Malancharuvil*
Policy Counselor
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
www.markmonitor.com <http://www.markmonitor.com/>
*From:*gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Volker Greimann *Sent:* Wednesday, November 05, 2014 1:32 AM *To:* gnso-ppsai-pdp-wg@icann.org *Subject:* Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Sorry, but I smirked at this comment:
Lack of response to relays is evidence of bad faith, [...].
Really? In my book, lack of response is evidence of only one thing: Lack of response is evidence of lack of response. Nothing more!
There may be so many reasons why someone may decline to respond that are not bad faith, your conclusion is far fetched at best.
- Message was caught by spam filters - Message was accidentally deleted - Message message was not read - Message was considered spam and ignored - Recipient believed the message does not concern him - Recipient is in hospital/on vacation - Recipient got scared by the harsh language used even though he is not actually infringing - Recipient just does not want to deal with this at this time - Recipient choses not to respond
And those are just off the top of my head.
Best,
Volker
Best,
Val
Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com <mailto:vsherman@law.gwu.edu>
------------------------------------------------------------------------
*From:*gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org>] on behalf of Phil Corwin [psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>] *Sent:* Tuesday, November 04, 2014 9:43 AM *To:* Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org> *Subject:* Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Yes, Graeme, it is quite useful.
My only question regards this sentence -- "Shouldn't an IP rights holder know who they've allowed to use it and for what? " If "it" is a trademark/brand name, wouldn't the rights holder already know that?
Best, Philip
*Philip S. Corwin, Founding Principal*
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*From:*gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Don Blumenthal *Sent:* Tuesday, November 04, 2014 9:36 AM *To:* Graeme Bunton; gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org> *Subject:* Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Thanks, Graeme. This summary is very helpful.
Don
*From:*gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Graeme Bunton *Sent:* Monday, November 3, 2014 10:21 PM *To:* gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org> *Subject:* [Gnso-ppsai-pdp-wg] Recap & Moving Forward
For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others.
In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap.
Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups:
String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at
I think it's worthwhile for us to discuss using those terms going forward.
*Re: Allegations of IP Infringement and Disclosure & what constitutes content* Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted.
We collectively batted this around for a bit, main points being:
* the cost of a UDRP may be a useful gate to prevent abuse * 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. * Disclosure being helpful for the requestor does not by itself justify the disclosure * UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure * Disclosure rather than publish may keep the customer for the provider.
I don't think we resolved much from this discussion, but perhaps it clarified the positions.
To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy?
The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly.
Which lastly brings us to the discussion on a moderate central course of action.
James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others.
I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back.
Thanks
Graeme
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 ------------------------------------------------------------------------
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Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email:vgreimann@key-systems.net <mailto:vgreimann@key-systems.net>
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Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen.
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Should you have any further questions, please do not hesitate to contact us.
Best regards,
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Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email:vgreimann@key-systems.net <mailto:vgreimann@key-systems.net>
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-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
On 5 Nov 2014, at 5:19 am, Valeriya Sherman <VSherman@sgbdc.com> wrote:
Phil/Graeme -- An IP owner would know who they authorized to use the IP and who they did not. The issue is that they do not know whether a particular Customer, whose identity is hidden, needs authorization or not. In the example I provided earlier, where a Requestor has rights in US but not in the EU, it would be essential for him to know where the Customer is located to establish whether the Customer needs any authorization -- and that is some of the information that Disclosure would provide.
Knowing whether the IP is authorized or not is NOT the only factor in knowing whether or not in knowing whether the customer needs authorization, because there exist (varying by jurisdiction) fair use defences to use of trademarks, alternative IP, and all the other uses that Volker mentioned. There is no foolproof way of knowing whether a customer is entitled to fair use etc (though of course by looking at site contents you can probably have a reasonable idea), and sometimes that may be the issue the UDRP arbitration is deciding. Those who are using a fair use defence (which is not something that can be determined until after the UDRP is initiated) may be particularly keen to avoid Disclosure, as the information may be used not just for UDRP, but for other forms of action, which may be legal or informal.
Another point that came up during our call is that an authorized party would respond to a relay request. Lack of response to relays is evidence of bad faith, but it doesn't obviate the need for disclosure. As noted above, a Customer may not need any authorization, so his failure to reply to a relayed request is not conclusive evidence of his rights or lack thereof.
And if they reply to a relayed request that isn't necessarily evidence of anything either. It really seems to me that this line of argument is basically 'any information that might usefully inform about the possible outcome of UDRP/URS is grounds for disclosure'. And I think that reasoning has it backwards - of course it would be useful to know any information that would help know the outcome of a UDRP before one is launched, but presumably it is useful to the registrant to keep their details private too, and just being useful to the IP owner is not sufficient to justify disclosure. After all, in theory the Provider could decide to respond to the UDRP on behalf of the registrant - and some may well choose to do just that, if the client is particularly keen to keep their identity private. And quite definitely the recipient of a UDRP can choose to voluntarily give up the domain in order to prevent disclosure. So even launching a UDRP is no guarantee of Disclosure. So why should considering a UDRP be grounds for disclosure?
Disclosure is still needed.
Disclosure is desirable to the rights holder. That is not the same as necessary. Regards David
Best,
Val
Valeriya Sherman Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel 202.944.3300 Cell 303.589.7477 vsherman@sgbdc.com From: gnso-ppsai-pdp-wg-bounces@icann.org [gnso-ppsai-pdp-wg-bounces@icann.org] on behalf of Phil Corwin [psc@vlaw-dc.com] Sent: Tuesday, November 04, 2014 9:43 AM To: Don Blumenthal; Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Yes, Graeme, it is quite useful.
My only question regards this sentence – “Shouldn't an IP rights holder know who they've allowed to use it and for what? “ If “it” is a trademark/brand name, wouldn’t the rights holder already know that?
Best, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Don Blumenthal Sent: Tuesday, November 04, 2014 9:36 AM To: Graeme Bunton; gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
Thanks, Graeme. This summary is very helpful. Don
From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org]On Behalf Of Graeme Bunton Sent: Monday, November 3, 2014 10:21 PM To: gnso-ppsai-pdp-wg@icann.org Subject: [Gnso-ppsai-pdp-wg] Recap & Moving Forward
For my own benefit I thought it useful to try and capture highlights from the recent list discussion. Apologies if I've mis-characterized any of your arguments. I was trying to collect and aggregate them for my own understanding, and perhaps this is also useful for others.
In general, we're still discussing disclosure. This has created two related threads of conversation, one around the definition of content, another for allegations of IP infringement, though they mostly overlap.
Before we get to that, Eric Brunner-Williams, via Michele introduced some language that I thought was interesting and helpful, at least for introducing some precision in our discussions. This was, If I am understanding correctly, that we can break down some issues into two groups:
String issues: problems directly related to the string of characters that constitute a domain name Resolved resource issues: problems related to what a domain name is pointed at
I think it's worthwhile for us to discuss using those terms going forward.
Re: Allegations of IP Infringement and Disclosure & what constitutes content Phil Corwin raised concerns about relaying registrant details upon an allegation of infringement. He pointed out that UDRP and URS exist for string issues, and that complaints are frequently dismissed and reverse domain hijacking is increasing. Mandatory disclosure does not, to Phil, 'facilitate resolution'. Valeriya was suggesting that having access to registrant details prior to filing a UDRP may eliminate the need for the potential UDRP, as it better enables the rights holder to determine if a UDRP is warranted.
We collectively batted this around for a bit, main points being: the cost of a UDRP may be a useful gate to prevent abuse 'cybersquating' and stockpiling domain names are not necessarily examples of bad faith use. Disclosure being helpful for the requestor does not by itself justify the disclosure UDRP filings due to the subsequent publishing of details are generally worse for the registrant than disclosure Disclosure rather than publish may keep the customer for the provider. I don't think we resolved much from this discussion, but perhaps it clarified the positions.
To me, and perhaps someone can clarify, it seems like the request for disclosure on allegation of infringement is to be used to fill in a rights holders' information gap. Shouldn't an IP rights holder know who they've allowed to use it and for what? Should we be building this mechanism, given the potential for abuse and the importance of protecting registrant privacy?
The separate thread around the definition of content, if i may borrow a phrase from Steve, generated more heat than light. It ended up centering around the issue that most privacy/proxy service providers reserve the right to unilaterally terminate service to a customer, without due process, while also insisting that disclosing registrant details to a 3rd party upon IP infringement allegation was itself violation of due process. Volker and Frank pointed out that providers reserve the right to protect themselves, and may not use it lightly.
Which lastly brings us to the discussion on a moderate central course of action.
James had suggested that we look into the authorization and identification of 3rd party requestors. It's not a bad idea, though I suspect easier to implement for larger providers, so it might be worth hearing an opinion from others.
I'm going to circle back to some of the discussions and proposals that registrars had worked on privately, and will see if that can be made ready for prime time. I'd encourage everyone to ponder ways forward on this issue, as we move on to category G to make a bit of headway before circling back.
Thanks
Graeme
-- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634 No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
participants (11)
-
Chris Pelling -
David Cake -
David Heasley -
Don Blumenthal -
Frank Michlick -
Graeme Bunton -
Kiran Malancharuvil -
Phil Corwin -
Stephanie Perrin -
Valeriya Sherman -
Volker Greimann