Paul, Can you provide us with some source citations for your assertion that the vast majority of domains transferred in a UDRP were subsequently allowed to expire? In our experience, at least working on behalf of our clients, we almost never allow recovered domains to expire; instead they are transferred into the client’s overall domain name portfolio and held either for future active use or to maintain defensive protection. Best regards, Brian ________________________________ [https://daks2k3a4ib2z.cloudfront.net/59358b8cf7332631232417e8/595fb59d73c5b113a1d2a61b_WIPG_LogoMark.png]<https://www.winterfeldt.law/> Brian J. Winterfeldt Principal Winterfeldt IP Group 1200 17<x-apple-data-detectors://12/1>th<x-apple-data-detectors://12/1> St NW<x-apple-data-detectors://12/1>, Ste 501<x-apple-data-detectors://12/1> Washington, DC 20036<x-apple-data-detectors://12/1> brian@winterfeldt.law<mailto:brian@winterfeldt.law> +1 202 903 4422 From: Gnso-rpm-protection [mailto:gnso-rpm-protection-bounces@icann.org] On Behalf Of Paul Keating Sent: Monday, January 8, 2018 2:58 PM To: Tushnet, Rebecca <rtushnet@law.harvard.edu> Cc: gnso-rpm-protection@icann.org; Paul Tattersfield <gpmgroup@gmail.com> Subject: Re: [Gnso-rpm-protection] [gnso-rpm-wg] Food for Thought: DMCA procedure at YouTube contrast with URS/UDRP Rebecca Not changing my opposition but facts are always a good thing. Pls make sure that the registrant has remained the same. You should also acquire a screenshot from screenshots.com<http://screenshots.com> (free). Interestingly a few years ago it was found that the vast majority of domains transferred in a UDRP were subsequently allowed to expire by the complainant. Sincerely, Paul Keating, Esq. On Jan 8, 2018, at 8:48 PM, Tushnet, Rebecca <rtushnet@law.harvard.edu<mailto:rtushnet@law.harvard.edu>> wrote: My RA is presently coding all decided cases and will look at whether the domains are still active and registrant identity, if any. Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School Sent from my phone. Apologies for terseness/typos. On Jan 8, 2018, at 12:07 PM, claudio di gangi <ipcdigangi@gmail.com<mailto:ipcdigangi@gmail.com>> wrote: Paul, I don't have the exact numbers. Anecdotally, it appears a non-trivial portion of the suspended domains are being renewed by the losing registrant; see this blog article: https://domainnamewire.com/2016/11/18/strange-thing-happening-domain-names-suspended-urs/<https://urldefense.proofpoint.com/v2/url?u=https-3A__domainnamewire.com_2016_11_18_strange-2Dthing-2Dhappening-2Ddomain-2Dnames-2Dsuspended-2Durs_&d=DwMFaQ&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=75VBJOhTZcrx-MAdyVRcLjXDNCZLGcptQJ_mv5X3IT4&s=wwBGTHuqzACAi0540c88LR0K2k-RR0L30sLtDv7zO38&e=> From the domains I've researched, a much smaller subset are being put back into use by redelegating the Name Servers. I previously sent around reference to a domain that was suspended, and the registrant took back control and the domain is being offered for sale. Best regards, Claudio On Mon, Jan 8, 2018 at 10:58 AM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: Has there ever been an instance where someone has made a nuisance of themselves by re-registering and abusing names that they have had suspended under a URS determination? On Mon, Jan 8, 2018 at 3:26 PM, claudio di gangi <ipcdigangi@gmail.com<mailto:ipcdigangi@gmail.com>> wrote: George, all, Thanks for this note. Just for clarification on the last point, as I understand the current remedies available under the URS does not include cancellation of the domain. As a result, upon expiry the suspended domain can be renewed and used (including for abusive purposes) by the losing registrant of the URS decision. To address this issue we can consider adding cancellation as a remedy (or otherwise modifying the URS) to minimize the need for repeated, serial enforcement against previously suspended domains. Best regards, Claudio On Mon, Jan 8, 2018 at 8:09 AM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote: Hi Paul, Thanks for your thoughts. I agree that they are different. Just pointing out that there are other systems out there that don't have that role reversal feature. Also, I believe some folks had mused about the possibility of a single DRP that integrated the URS and UDRP. The issue of creation of a "Notice of Dispute", that preceded the actual dispute, also has arisen. If such a system also handled the high number of defaults differently than today, then one result might be a much lower cost procedure in the case of defaults (i.e. it could be very lightweight like the YouTube procedure), and then reference to the courts for the disputes when both sides show up and are heavily contesting the matter. In terms of integration, one way to look at the URS is that it's very similar to a UDRP where the Complainant (TM holder) asks only for cancellation, albeit that the URS cancellation happens with a delay (under the UDRP, the cancellation would happen almost immediately, after allowing for the appeal to the courts) Sincerely, George Kirikos 416-588-0269<tel:416-588-0269> http://www.leap.com/<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwMFaQ&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=75VBJOhTZcrx-MAdyVRcLjXDNCZLGcptQJ_mv5X3IT4&s=bZgUqdZsWJpxn2JYP9hWkC_z7SdwF8iumg-TacpP0K0&e=> On Mon, Jan 8, 2018 at 6:30 AM, Paul Keating <Paul@law.es<mailto:Paul@law.es>> wrote:
George,
I know that a response has already been posted but I wanted to add my quick thoughts.
I agree that the DMCA and the UDRP/URS are not identical. In fact the roles remain reversed throughout the UDRP/URS process. The DMCA merely provides a notice, take-down followed by the opportunity to revive the posting. Once reposting occurs the issue remains as it was before the notice - the copyright owner must proceed with litigation. The UDRP/URS however, results in the domain being transferred/suspended or not. In the case of transfer, it is the registrant that must file. In the case the complaint is denied then the trademark owner has that burden (like the copyright owner in the DMCA example).
PRK
On 1/6/18, 12:23 AM, "gnso-rpm-wg on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of icann@leap.com<mailto:icann@leap.com>> wrote:
Hi folks,
There was an interesting article published today about a copyright dispute involving "white noise" videos on YouTube:
which linked to the dispute procedure that YouTube follows:
Going through the various links, it was very interesting that they even have a "Copyright School", see:
(expand the "How to resolve a copyright strike" to see the link to it), which is quite interesting, given how often the education aspect for registrants has come up in our PDP's work.
Also of interest is the section on "Counter Notification Basics":
where importantly it says:
"After we process your counter notification by forwarding it to the claimant, the claimant has 10 business days to provide us with evidence that they have initiated a court action to keep the content down."
and it's the content creator who posts the relevant jurisdiction:
""I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside of the United States, the judicial district in which YouTube is located, and will accept service of process from the claimant."
As noted in prior threads, various issues arise under the URS (and UDRP) when the natural role of plaintiffs vs. defendants (had the URS/UDRP not existed) gets reversed (e.g. the Yoyo.email UK "cause of action issue", as well as IGO and other groups' claimed "sovereign immunity").
With the dispute resolution procedure followed by YouTube, instead the onus is on the copyright owner (the "claimant") to file the lawsuit, in the same natural way that would exist had that dispute resolution procedure not existed. Thus, none of the issues due to reversal of plaintiff/defendant arise.
I thought it would be of interest, especially as it also might also give insights as to how "defaults" are handled.
Food for thought.
Sincerely,
George Kirikos 416-588-0269<tel:416-588-0269> http://www.leap.com/<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwMFaQ&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=75VBJOhTZcrx-MAdyVRcLjXDNCZLGcptQJ_mv5X3IT4&s=bZgUqdZsWJpxn2JYP9hWkC_z7SdwF8iumg-TacpP0K0&e=> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_gnso-2Drpm-2Dwg&d=DwMFaQ&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=75VBJOhTZcrx-MAdyVRcLjXDNCZLGcptQJ_mv5X3IT4&s=sfTfkVGmawpDaGRALB7YA-N0zrMgsU1IQ_bKZkMYasE&e=>
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