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    STOP the Madness! | Log in/Create an Account | Top | 18 comments | Search Discussion
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    Re: STOP the Madness!
    by Anonymous on Sunday June 30 2002, @05:08AM (#7553)
    By "Jeff Davies":

    Hello Richard,
    Although I have had private correspondence with a number of the 'members' of this forum, I feel that I should respond publicly to your question as I feature prominently in the basis for it  and I certainly doubt that you will receive any response from Afilias!

    The status of domains that have been obtained as a result of the challenge process has, of course, been very much in my mind too.

    Yes, I admit it  I am one of those reprehensible people who challenged and obtained a number of .info domain names.

    While you are aware of most of what follows, for the benefit of others on this forum who are not, I will provide a very brief history.

    Like many who post here, I was unsuccessful in obtaining any of the names that I applied for in LR1. However, unlike many forum pontificators who choose to sit and whine about their misfortune, I used my time (and what money I could afford) to research the challenge process and the claims of the registrants and then make direct challenges to those who had obtained domain names that I had applied for and appeared to have used invalid trademarks to do so.

    I acted in conformity with Afilias definition of the challenge process which stated: This expedited process opens the battle against cybersquatting to every interested Internet user.

    I was subsequently awarded a number of domain names by WIPO when, without exception, the registrants were shown to have made false claims in order to obtain the domain name.

    Fairness prevails over larceny I thought - until, having done their job for them, Afilias suggested that they had my domain name registrations in their sights for inclusion in their challenge of last resort. This surprised me considerably in view of Afilias statement (via ICANN) that Afilias will submit a challenge against  registrations that are not challenged by others.

    I wrote a number of emails to Afilias and finally sent them a 16-page letter summarizing the history of my challenges and registration of the awarded domains. I also explained why I thought that they would be wrong to challenge these registrations. For those with too much time on their hands, the text of this letter is available at http://www.uk-inc.com/afiliasletter121201.asp.

    On December 14, 2001, Roland LaPlante responded that Afilias was carefully reviewing my letter. I sent a number of further emails to Afilias but did not receive any further response. Almost 2 months later (on February 5, 2002) I received an email from Michael Palage who advised me that he was an intellectual property attorney and a trademark and policy consultant to Afilias. He said that he would be meeting with Afilias management and their outside counsel later that week to discuss my correspondence and asked for any further material that I wished to have considered. I responded accordingly.

    In spite of numerous further requests and enquiries, I have received no further response from Afilias.

    I remain the registrant of most of the domains that were awarded to me by WIPO and none were included in Afilias challenge (or included in LR2). They do, however, remain locked. So, nearly 7 months after their careful review, Afilias intentions remain unclear (and undecided?).

    They are, however, aware that I will immediately file a complaint against them in US Federal Court should they seek to challenge any domain that I have registered.

    Several challenges have been made against these domains by people who dispute my right to them. When WIPO refused to consider the legal basis of such challenges in spite of repeated requests, I turned to the US Federal Court to challenge WIPOs rulings. In the unlikely event that people still have time on their hands after reading my online letter to Afilias, I have also put a copy of the complaint online at http://www.uk-inc.com/hotelcomplaint.asp.

    This case is not about trademarks  although I included some relevant thoughts on the subject in the complaint - it is about legality and due process.

    The judgment in this case has now been handed down by a senior Federal Judge and confirms my right to the domain name. It states, in part:

    1. The registration of the domain name hotel.info was not made subject to a registration agreement that provided for it to be challenged under the Afilias Sunrise challenge policy. The World Intellectual Property Organization (WIPO) therefore had no jurisdiction to adjudicate a challenge against the registrant under the Sunrise challenge policy. As a result, any decision of WIPO to order the transfer or cancellation of the domain registration is invalid.

    2. The plaintiff is entitled to a declaration that his registration and use of the domain name hotel.info is not unlawful under the provisions of the Anticybersquatting Consumer Protection Act and a declaration of this Court to this effect is hereby made.

    3. As a result of the findings in paragraphs 1 and 2 above, the plaintiff is entitled to full and unrestricted use of this domain name registration. This Court orders that all appropriate action should be taken by the domain registry, Afilias, and all other involved parties to immediately restore full and unrestricted use of the domain name hotel.info to the plaintiff.

    I have sent a copy of the judgment to Afilias. They have advised me that it has been passed to various departments and awaits their decision

    Those who are particularly interested in my motivation and the legalities of my complaint can read the two online documents referred to above. Hopefully I will not bore the pants off everyone else, by making a few additional comments.

    First, I am surprised that no-one appears to have noticed the part of section 1 of the Sunrise Challenge Policy that states:

    It sets forth the terms and conditions in connection with a dispute between you (as the registrant) and any party other than us (as the registrar) or the registry operator for the .info top-level domain (the "Registry") regarding the compliance of your registration of a second-level domain name (the "Domain Name") with the sunrise registration conditions set forth in the Registration Agreement.

    In the revised policy that took effect on December 6, 2001, Afilias tacked on a section that referred to their right to being a challenge of last resort but left the section quoted above intact.

    If the Policy and associated rules do not apply to a dispute between the registry and a registrant, upon what basis does Afilias have a right to bring its challenge of last resort? And if the Sunrise Policy and Rules do not apply, what rules DO apply? What procedures are followed? What rights do respondents have? And where do the rules of due process and fairness enter the procedure  which appears to have been conducted in an impenetrable fog of secrecy. WIPO has even refused to publish any details of challenges that have been made and the results of such challenges  contrary to their own rules.

    Theres still time for someone to apply to a court for an injunction to stop LR2 proceeding until the contractual right of Afilias to make its challenge has been scrutinized by a Judge. I would certainly have done so myself had my domain name registrations have been challenged by Afilias (if I had a larger ego, I might even think that they have not challenged my registrations to avoid the certainty of a lawsuit from me until they have concluded the LR2 process!!!)

    And before you leap to respond to this comment, let me make it clear that I absolutely do not disagree with Afilias revoking the thousands of Sunrise registrations that were fraudulently obtained and offering them to the general public (although I certainly disagree with the process being used  but thats another story) They deserve to lose their domains and I am happy to have been instrumental in prying their grubby fingers from a few of them. However, evidence has been provided on this forum (and its predecessor) of applications being invited and submitted by greedy registrars anxious to make a few extra dollars by failing to inform applicants of the need for trademarks as a precondition of applying for domain name registrations during the Sunrise period. Many applications were also made by people who simply did not understand what Sunrise registrations were all about. Their applications were made quite innocently. They did not use false trademark information and, in many cases, were simply not asked for it. I have communicated with many of them who are absolutely dismayed by the loss of their registrations, the money that they paid for them and the work they have put into developing web sites as a result of being awarded the names. It is clear that many of the applications were from people who were simply confused and were horrified to learn from Afilias earlier this year that they had to produce evidence of a trademark or lose their domain name.

    Afilias stated in their application to ICANN to run the .info registry that they did not intend to validate the details provided by applicants to justify a Sunrise registration. They also told registrars that they would not do so. As a brand new company with lots of expenses and no income, it would be sound fiscal policy to maximize initial cash inflow. I have a masters degree in financial management and, and, in other circumstances, I would applaud their sound financial management. In the circumstances of the .info rollout, I would be more likely to categorize their policy as entrapment)

    When Afilias was forced to acknowledge the problem of invalid registrations being effected on a huge scale, it was open to them to take action. Where it was clear that the application was simply a mistake (where no trademark data was entered), it could have cancelled those registrations and refunded the fees paid. There was ample time for this to be done so that the names could be offered in the general public registration period (LR1). Afilias announced in early August that they were considering what action to take. If they had really been concerned about fairness rather than maximizing their revenue, they would have done some simple validation of trademark data and cancelled those registrations that were invalid. Instead they stuck to their ludicrous position that it was not economically feasible to validate applications and decided to take no action to identify or reject invalid registrations. This decision not only allowed them to keep the multi-year registration fees already paid to them, it also allowed them to get a $50 commission from WIPO for every challenge made to such invalid registrations (Id love to hear the rationale for that..) and, of course, another influx of registration cash when the registrations were later cancelled (when they had presumably learned how to validate applications) and offered afresh in LR2.

    It is like a local computer store placing an ad in a newspaper. Only people who qualify are invited. Invitees must hold a valid credit card and to get into the store they have to pay $100 per item that they intend to buy. To save time and money, the company is not installing cash registers or hiring expensive cashiers or security guards. They are trusting people to fill out their own credit card slip on their way out. Many dishonest people grab their goods and sign Mickey Mouse on the credit card slips as they leave. Others, who have not seen the ad in the newspaper, see the sign on the store that says pay $100 per item on entry, Pay their $100 and innocently walk out without filling out a credit card slip as no one has told them that they have to. Busloads of shoppers then appear who have not seen the ad but have been contacted by Registrars Transportation (under contract to the computer store to deliver customers to their door) offering to take them to a store where they can buy any item for just $100  no credit card needed. They swarm in, pay their $100, collect their merchandise and swarm out. No-one stops them or asks them for a credit card. Later, the store pays WIPO - Worst Impersonators of Public Officials - to confiscate all of the merchandise where a credit card slip was not completed and return it to the store to be resold. You didnt know the rules? A refund? Sorry! We should have told you that you needed a credit card and checked that you filled it in? Sorry, we couldnt afford to buy registers or hire cashiers or guards!

    I remain appalled at the actions of both Afilias and WIPO and their basic denial of fairness to every internet user throughout this whole Sunrise process.

    The Sunrise policy is, in my view, fundamentally flawed in that it seeks to create rights for trademark holders that do not exist in United States or (to my knowledge) any other substantive body of national or international law. Such rights are simply meaningless and unworkable in the global environment of the Internet. Only one person can own a registration for any one name in any one tld. Multiple trademarks exist for practically every word in the English language  the trademark system is specifically designed to allow multiple trademarks for multiple uses in respect of goods or services. Any Sunrise system that seeks to reward just one person with a domain name over the rights of everyone else  including competing trademark holders - is fundamentally wrong and contrary to all principles of trademark law. For Afilias and/or ICANN to try to impose such rules on the Internet - a system that is so pervasive in modern society and so important to the global economy - should be seen for what it is - an attempt to make law that is contrary to international legal principles and specifically contrary to the law of the Country that established ICANN and is supposed to regulate its activities. The right to make law should be restricted to legislative bodies that have a mandate to represent the people who have to abide by such law. Neither Afilias or ICANN have any such mandate except from a narrow, albeit powerful, group of lawyers, registrars and special interest groups that benefit from policies that deprive ordinary Internet users of fairness and equality.

    Regretfully, I have to say that I do not find myself in sympathy with many of the postings that I have read on this forum - their tone and content do much to allow ICANN and Afilias to ignore the forum and those that have valid things to say here. There is, however, a clear, strong and consistent expression of outrage at the lack of accountability, responsibility and responsiveness on the part of ICANN, and its registries and registrars. That such overwhelming criticism and direct evidence of corruption, greed and outright stupidity should be ignored and allowed to continue is simply beyond my belief.

    So, Richard, I am finally getting to your question  what is the status of Sunrise names successfully challenged through WIPO and transferred to the challenger? As far as the domain names registered to me are concerned, I am still the registrant in most cases  although in a locked status. One Federal law suit has been determined (judgment as above), a default has been entered in another and a final judgment in line with the one already received is expected any day in a third. One further lawsuit against WIPO and the current registrant of internet.info has been filed but both parties are reluctant to accept service of the Courts summons (WIPO ignores all reference to it and the attorney of the registrant (none other than Mr Amadeu Abril y Abril of significant status within ICANN) has broken every promise that he has made to resolve this matter without the need for litigation). Afilias is aware of the details of the lawsuits that I have filed and, as the circumstances of one apply equally to them all, I would think it would be prudent for them to have awaited the outcome before deciding whether to challenge my registrations. Now that a Federal Court has decided unequivocally that the domains that I have registered are not challengeable either by Afilias or a third party because of the lack of a registration agreement that provides for such a challenge to be made, then I would expect Afilias to accept the Federal Courts decision; accept my right to retain these domain registrations; unlock them and pass on to more important matters - such as promoting .info and letting us registrants get on with developing our sites and making .info a tld that people will begin to recognize as an intuitive path to Internet information  which will lead to more demand for .info domain names  which is the only way that Afilias is going to make any more money from this venture.!

    I have no idea whether the same conditions with regard to registration agreements (or lack of them) apply to the other challengers that you mention. I have had some correspondence with Jeffrey Kubiak and Simon Steinle but dont really know their current status. Perhaps they will post a response. It is interesting that you should have included Greg Crane in your list. I have had extensive correspondence with him and have recently brought an action against him in Florida Circuit Court as a result of my investigations regarding the transfer of realestate.info, warranty.info and technicalsupport.info from one company with which he is associated to another with which he is also associated as a result of the one company suing the other in the Maricopa Superior Court and obtaining an unopposed order of the Court granting ownership of the domains to the second company. Under Afilias rules, they are bound to give effect to such a transfer if provided with a Court order. The fact that this process took place immediately following challenges being mounted against the domains through WIPO and resulted in all such challenges being dismissed is, of course, entirely co-incidental.

    A final thought: The year long uncertainty over the ownership of domain names has probably hurt Afilias to a much greater degree than any short-term benefit that it derived from the windfall of ill-gotten Sunrise receipts. I recently saw a report that less than 1% of .info domain names pointed to real content. Even Afilias web site has now ceased publicizing the success of the domain by pointing to just three fairly lame examples of .info domain sites actually being constructed. I think they would be well-advised to make a public declaration that the whole, sad Sunrise affair is officially over with the award of the LR2 names. The longer any degree of uncertainty remains, the longer it will be before anyone has any faith in the success of the .info domain. And if that means that a few slugs remain hidden with their booty under a few stones, then its a small price to pay for a return to stability, confidence and an end to the bickering and finger-pointing that has characterized this forum and the whole sorry Sunrise debacle.

    Hopefully, there will be some benefit derived by some lessons being learned and future domain releases consequently being more thoughtfully developed. At the very least, there is bound to be a more general awareness among people who will hopefully scrutinize the future actions of ICANN and the domain industry.

    Richard, I have been consistently impressed with your fair, reasoned and meticulously balanced comments and criticisms. While I understand their reluctance to wade into the piranha-filled waters of this forum (it took me long enough to dare to put my foot in), I think ICANN, Afilias and their allies do themselves considerable harm by ignoring your direct requests for fairness and accountability. I doubt that my contribution or soul-baring will have the slightest impact  except to encourage some anti-domaingrabber-speculator comments on this forum. ICANN, Afilias and WIPO have consistently shown themselves to be totally disinterested in criticism  no matter what its source. My puny opinions will not change that.

    And, to those of you who have made it this far - you deserve to make me listen to your unrestrained comments..

    [ Reply to This | Parent ]
    Re: STOP the Madness! by Anonymous
    Re: STOP the Madness!
    by dtobias (dan@tobias.name) on Sunday June 30 2002, @06:42AM (#7554)
    User #2967 Info | http://domains.dan.info/
    While I agree with your criticisms of the .info sunrise policy, I disagree with the merits of your claim to ownership of the domains you won in the challenge process, or of the lawsuit you've filed against somebody else who challenged you in turn. While it's true that anybody was allowed to file a challenge against bogus .info sunrise registrations, it was also true that the successful challenger was required to comply with sunrise policy themselves if they wished to register the disputed domain -- this means that they were required to have a valid trademark on the name. Since you didn't, you got a taste of your own medicine when yet another party who also lacked a valid trademark challenged you in turn. Your lawsuit sounds a lot like sour grapes. Fairly speaking, all of those domains in question should have been put into the public pool for Landrush 2.

    By the way, whatever software you're composing your messages on seems to be inserting nonstandard characters; it's coming up for me with squares where various stuff like quotes and dashes should be. I'm used to seeing that on Mozilla (my normal browser) since it follows standards more strictly than other browsers, but right at the moment I'm using somebody else's computer with a very recent version of MSIE, and I guess even that has increased its standards conformance to no longer accept some oddball characters that used to work.
    [ Reply to This | Parent ]
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