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    Highlights of the ICANNWatch Archive
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    This discussion has been archived. No new comments can be posted.
    Did Jeff Davies find a legal loophole? | Log in/Create an Account | Top | 143 comments | Search Discussion
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    Re: Did Jeff Davies find a legal loophole?
    by Anonymous on Thursday December 26 2002, @04:18AM (#10725)
    You seem VERY intent on imposing your own version of the Rules rather than what they actually state. I'm beginning to wonder if there is a motive beyond a desire not to appear to be wrong in your previous public opinions....

    You point once again to the ICANN/Afilias agreement to find the rules. It does not apply. Afilias created its own rules that sometimes do and sometimes don't reflect the agreement with ICANN.

    The Afilias rules contain a definition of "Registration Agreement" - it is the agreement between a Registrar and a domain name holder. In the case of a succesful challenger who registers a domain name, it is the agreement between himself and the Registrar who registered the name. It is NOT the original Sunrise registration agreement - that terminated when the original registrant lost the domain name on being succesfully challenged. If the new registration agreement did not contain a provision that the registration was subject to Sunrise conditions, then, as a simple matter of contract law, it was not.

    If a succesful challenger had to have a trademark before a domain name was transferred to him, WIPO could have required that this be provided before issuing an authorization code. It did not.

    If Afilias required a succesful challenger to have a trademark before regsitering a transferred name, it could have required that this be provided. It did not.

    If Afilias required a succesful challenger to provide trademark information on regsitering a challenged domain name it could have insisted that this be provided. Not only did it not in the case of registrations by Jeff Davies, it even told the Registrar to delete all reference to trademark information in the registrations.

    Perhaps this could happen once in error. But 25+ times over the period of 3 months???

    I think, Dan, that it is time to quit trying to make it look as though Afilias has somehow been deceived here. They deliberately formulated their policy. Unless they are TOTALLY incompetent, they deliberately left out the requirement of the ICANN/Afilias agreement that a succesful challenger provide evidence of a trademark. There is a clear financial incentive for them to have done so.

    Loopholes are inadvertantly created - and plugged immediately they are discovered. Afilias was told about this one in early October. They plugged it 2 months later in December - just before the challenge period ended anyway. I don't think the term 'loophole' is appropriate here, do you.......?
    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole? by Anonymous
    Re: Did Jeff Davies find a legal loophole?
    by dtobias (dan@tobias.name) on Thursday December 26 2002, @05:52AM (#10727)
    User #2967 Info | http://domains.dan.info/
    I base my views on the ICANN/Afilias agreement because that's what I have always used as my "Bible" regarding policies in new TLDs; it's the fundamental document on which the new TLD launches were based, just as the U.S. Constitution is the fundamental document on which the U.S. government is based (even if branches of it sometimes do unconstitutional things).

    At the time leading up to the original launches, I kept up with the ICANN site very regularly to check for updates as the parts of the agreements fell into place, and took their word as to what the startup procedures would be. I thought some of the rules and procedures outlined there were unfair, and wrote in criticism of them here and elsewhere, but I never imagined that the registration agreements created by registries, registrars, and dispute resolution providers acting under the authority of the original ICANN agreement would be blatantly inconsistent with that agreement. I never paid a great deal of attention to those other agreements, and it amazes me now to see how inconsistent they are.
    [ Reply to This | Parent ]

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