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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    This discussion has been archived.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:your question
    by Anonymous on Thursday January 02 2003, @03:05AM (#10817)
    I am reliably informed that the Lorenz applications were accepted after the Afilias announcement that certain ineligible sunrise applications would be challenged by Afilias. This indicates that Afilias was aware of the alleged problem yet still accepted ineligible applications...not an insignificant point.

    I am also in receipt of this opinion, after I started investigating the legal backdrop to the case:

    "One might start with the position that facially defective applications should not have been processed. When facially defective applications where allegedly processed, particularly those that clearly indicated no TM(s) after 8/15/01,
    this may or may not be seen as abrogating any possible property rights of three parties by the authority and it's agents involved in processing the
    allegedly ineligible applications, to wit: 1) legitimate TM holders, 2) landrush applicants and 3) the makers of the defective applications. Legitimate TM holders might have been denied a fair opportunity to register their TM(s) during sunrise; landrush applicants might have been denied fair opportunities at names during the landrush period, opportunities that monies were paid for; and, the makers of the allegedly defective applications whose monies might have been allegedly taken knowingly in exchange for nothing of value since their allegedly ineligible applications would be subject to challenge. If there are significant numbers of alleged facially defective applications that were processed, especially if done over time, especially if the alleged problem might have been raised prior to processing...If the processing authority allegedly might have knowingly broken the rules... that also might have certain implications. This opinion may or may not represent a factual situation and does not constitute legal opinion."

    DomainBank Inc. billed Lorenz a total of $15,925.00 USD for applying on his behalf for the 93 domain names, even though they were clearly ineligible and the registrations were not allowed. DomainBank were not entitled to make these applications. That is absolutely clear if you read the rules. The Registry-Registrar Agreement did not permit it. Of this amount, $7875.00 USD was charged to a credit
    card between 28/08/01 - 04/09/2001. The rest was charged later. When Lorenz asked his credit card company to retrieve the money, since Afilias had charged him for a product they were not entitled to provide, and since he had clearly requested in August that he wanted them deleted and released for Landrush, his credit card company received a letter dated 12/10/01 from a Tracy Merwine of DomainBank Inc. who wrote: "I have attached a copy of each charge slip and sales draft showing that the customer does in deed "own" each domain name for a term of 5 years. Therefore services have been rendered".

    In short, DomainBank broke the Registry rules by submitting 93 names without mandatory data.

    In short, Afilias registered these domains in breach of their Agreements and rules, and it would appear subsequent to publicly acknowledging that they were aware of the Sunrise problem.

    In short, neither Afilias nor DomainBank supported Lorenz's request (within a matter of days) that these names be cancelled and released for Landrush customers.

    In short, DomainBank charged Lorenz for a commodity they must have known they were not permitted to provide, a commodity which could never come to fruition.

    In short, DomainBank pursued Lorenz for the completion of payment "for services rendered"... services they were not permitted to provide, and which they knowingly processed in default.

    Further to all this, I can confirm that I separately and previously had paid for the right to participate in the Landrush for some of Lorenz's names. There were probably thousands of people like me who lost out as a result of DomainBank's actions in breach of the Agreement.

    One might think, considering any possible close relationship they might enjoy with the Afilias management, that they might want to be the very model of propriety as a registrar. One might think, considering the Afilias CEO's close association with DomainBank, that they would bend over backwards to abide by the Registry-Registrar rules.

    Did DomainBank (and Afilias) not have a professional duty to protect Landrush customers and other Trademark Holders, instead of breaking the Registry rules for $15000, and processing an invalid product? Did their right to profit (albeit by breaking the rules) come before other people's legitimate business rights?

    I hope I have answered your questions, and please post again if you want any further clarification.


    Richard Henderson

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    Re:your question by Anonymous
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