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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    This discussion has been archived.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 dtobias (dan@tobias.name) on Tuesday December 24 2002, @12:43PM (#10693)
    User #2967 Info | http://domains.dan.info/
    I saw that post, and also replied... I cited this ICANN agreement as evidence that ICANN and Afilias had agreed in advance to require a valid trademark to be held by any sunrise challenger who wishes the domain transferred rather than cancelled, and subjected false trademark claims in this phase to further challenge just like false claims in the sunrise.

    Davies responded that no such thing was in any agreement he made with WIPO or with the registrar he dealt with afterward, in filing the challenge and in registering the domains after winning it, and when they later attempted to add such a clause it was illegal because this was modified after the fact.

    If this is actually the case, then clearly somebody (the registrars and/or Afilias and/or WIPO) violated the terms of the ICANN/Afilias agreement with regard to the sunrise challenge rules.

    However, I'd like to see an actual copy of the court decisions in question before I believe him on it.
    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole?
    by Anonymous on Tuesday December 24 2002, @01:01PM (#10695)
    With Louis Tutton and Joe Simms providing the legal advice there really is no surprise that Icann/Afilias inaverdently created a legal loophole.
    [ Reply to This | Parent ]
    Re: What's Really Absurd ...
    by Anonymous on Wednesday December 25 2002, @09:02AM (#10710)
    What's really absurd is the fact that domain speculators know more about the registrar-registry agreements than Vint Cerf, et al.
    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole?
    by Richard_Henderson on Wednesday December 25 2002, @04:56PM (#10714)
    User #3269 Info | http://www.atlarge.org/

    Read the rest of this comment...

    [ Reply to This | Parent ]
    Re: Those Within ICANN Lurking Here ...
    by Anonymous on Thursday December 26 2002, @09:10AM (#10732)
    ... will eventually learn that the buck stops with the domain buyer (speculators, users, defensive trademark owners, webmasters, marketing consultants, etc.)

    The aforementioned groups will take .info and slam it into the ground, unless Afilias comes clean ...

    How will this be done? Easy, just sit on those .info names, either putting up no content or unimportant content. This should render .info fairly worthless, resulting in a plateau of reg numbers somewhere well short of any Afilias predictions back in 2000. Ha ha ha!

    The aforementioned groups should take another TLD, such as .biz, and make it the successful choice.

    The aforementioned groups have the power to make any TLD successful, and the ability to ruin any extension (except .com at this point).

    Just sit on the .info's ... make Hal Lubsen, Moshe Fogel, Govinda Leopold, Ken Stubbs, and the rest of the Afilias gangtas pay for stealing from and defrauding the domain buying public.

    Speculators, trademark holders, and the typical netizen all have the same interest here.
    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole?
    by Anonymous on Thursday December 26 2002, @06:27PM (#10735)
    What some could find an interesting side to the Davies case is: can a third party, (ie. a registry), unsolicitedly defend all nationally registered trademarks, be those marks famous or weak as part of some blanket domain registration policy?
    [ Reply to This | Parent ]
    Blame this on the TM lobby
    by Anonymous on Friday December 27 2002, @03:16AM (#10738)
    While the Afilias sunrise didn't run as smoothly as it should have, lets not forget that the blame for this mess lies not with the administrators, but with the designers.

    Those that really deserve credit for the "abomination" is the trademark lobby. This cock-up is brought to you by the same people that killed Napster and the letter M.
    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole?
    by Anonymous on Saturday December 28 2002, @02:53AM (#10750)
    It doesn't matter if Jeff Davies found a "legal loophole". ICANN and Afilias change rules and agreements on the fly, so if they wanted to stop this Davies from abusing the system by hoarding tons of names, they could stop him.

    [ Reply to This | Parent ]
    Re: Truth, lies and new tlds.
    by Anonymous on Saturday December 28 2002, @07:53AM (#10751)
    Beyond the legal issues, the issue is about basic right and wrong...about respect for customers...about the apparent failure of government and private interests to act responsibly and ethically...about the hiding behind the shields of double standards, liability disclaimers and proof of concept...about spin, abuse, power and greed. Largely preventable, the resulting abomination was a hard slap across the faces of both sunrise and landrush. Exposed, it remains a deplorable chapter in the history of Internet development. -verdict
    [ Reply to This | Parent ]
    by WIPOorgUK on Saturday December 28 2002, @08:40AM (#10754)
    User #3146 Info | http://wipo.org.uk/

    Read the rest of this comment...

    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole?
    by Anonymous on Saturday December 28 2002, @09:13AM (#10755)
    The Davies case could be considered as a source of legal information and a preliminary to further action.
    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole?
    by Anonymous on Saturday December 28 2002, @08:15PM (#10758)
    It's a friggin' public relations disaster, baby. Yeah baby.
    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole?
    by Anonymous on Monday December 30 2002, @01:17AM (#10767)
    Riddle me this, riddle me that, who's afraid of a silly @ss? Apparently not J.D. -Never rub another man's rhubarb
    [ Reply to This | Parent ]
    Re: Question
    by Anonymous on Monday December 30 2002, @07:54PM (#10772)
    Can anyone help define the following legal terms: "cospiracy to commit" and "aid and abet"?
    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole?
    by Anonymous on Tuesday December 31 2002, @07:27PM (#10789)
    Happy New Year everyone! Let us all include in our resolutions to continue to be just and fair throughout our lives.
    [ Reply to This | Parent ]
    Re: Spitting into the wind.
    by Anonymous on Wednesday January 01 2003, @05:13PM (#10808)
    The house always wins.
    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole?
    by Anonymous on Thursday January 02 2003, @02:54PM (#10838)
    Hey, boys and girls, Know what time it is? It's Economic Crime Investigation time.
    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole?
    by Anonymous on Friday January 03 2003, @06:37AM (#10848)
    Would like to see some anonymous opinions from legal eagles on this subject. Please assist if you can.
    [ Reply to This | Parent ]
    The .info Sunrise events - from INSIDE Afilias
    by Anonymous on Saturday January 04 2003, @07:16AM (#10859)

    I received this e-mail from a member of the Afilias team who had become concerned at the way .info was being run and what the public did not know. It is a very reliable source which I can entirely corroborate, but equally as an Afilias insider this person needs protection of their privacy. I'm posting it verbatim (the authority for the comments is the person who made them, and not me). I have good reason to trust this person, and they know in detail the planning and events leading up to the Afilias Sunrise:

    The e-mail:

    "Very privately, you should know that Moshe Fogel acted as interim CEO during the set up of Afilias. He acted in that capacity until an outside
    CEO was hired. However, the new CEO did not work out and Hal volunteered to take his place *temporarily* : Moshe sat in on Policy discussions, it was expected that he would convey the rules for Sunrise to Liberty and that Liberty would put in the necessary sanity checks to have minimized the
    incidence of fraudulent Sunrise registrations. I believe you will find that Moshe made questionable registrations during Sunrise, that his company
    made many, and the other Afilias Accredited Registrar in Israel made still more. Do keep your source to yourself, please."

    Why were "sanity" checks (to prevent obviously ineligible Sunrise applications) not implemented? Did companies associated with Afilias benefit as a result of this failure to communicate adequate safeguards?

    I'm not aware of questionable registrations made for himself by Moshe Fogel in the Sunrise period, although I have drawn attention to ineligible applications (with 43 identical fake TMs) made by Galcomm in the Sunrise.

    I'm not clear which other Israel registrar is being alluded to.

    What I find concerning is that Afilias appear to have been aware of the need for sanity checks to root out clearly ineligible applications, but it appears that these sanity checks were never put in place.

    I'm also left wondering why the person who as going to be CEO of Afilias quit suddenly, almost as soon as he'd arrived...

    Would YOU have wanted to be CEO of a company operating in the way Afilias have operated?

    Richard Henderson

    [ Reply to This | Parent ]
    Why didn't they adopt the Domebase Solution?
    by Anonymous on Saturday January 04 2003, @03:15PM (#10874)

    Why didn't they just delete the clearly ineligible names (which broke the rules) and make them available to Landrush customers?

    Why didn't they adopt the Domebase Solution, whereby the Landrush would go ahead for ALL names (including the Sunrise ones) and then allow Sunrise registrants to keep the names UNLESS they were subsequently challenged successfully, in which case the Landrush 1 customers would get the names.

    That way, genuine Sunrise customers and genuine Landrush customers would have been treated fairly, Afilias would have protected the REAL integrity of their process, and they would have done something to salvage their reputation.

    I wrote to Heather Carle, Afilias Board, and ICANN Board repeatedly in the second half of August, asking them why they would not adopt the Domebase Solution. It was so obvious, and so widely supported by people from countries all over the world, as a just and fair solution which would benefit everyone.

    This is a copy of one of those letters, from 24th Aug 2001:

    "Open letter to Heather Carle, Hal Lubsen and Roland laPlante
    cc'd to Vint Cerf, Dan Halloran, and Stuart Lynn

    Dear Heather

    If you go to www.theinternetchallenge.com you will now find 1000 .info (later over 10,000)
    Sunrise names.

    As a matter of justice, I am asking you delete even just 500 of them, to re-introduce into the Landrush phase at least some of the generics which were always going to be pre-registered for.

    As you know, many millions of dollars have been paid by people just to have a chance of winning these in your own randomised selection procedure.

    I have some individuals working closely with me, and we hope to have 2000 names on this site towards the end of next week.

    Even a dummy can see that over half of these names could be deleted tomorrow without any possible challenge, because they are visibly ineligible.

    I am now in a position to:

    Name the top 20 multiple applicants
    Name a registrar who has confessed in writing to having faked the Trademarks (of ALL his registrations)
    Name members of your own board whose companies have made fraudulent sunrise claims (in their own personal names)
    Present written confirmation that Afilias has refused to delete names where fraudulent claimants have asked them deleted


    You are able to implement the solution widely known as Domebase, otherwise presented to you as "The Simple Solution" which would:

    Satisfy your Trademark applicants
    Satisfy your Landrush applicants
    Facilitate the pursuit of false claimants (since Landrush winners would do this with zeal and, though unfair, in most cases would pay the challenge fees because they would want their winning name badly enough)

    I am asking you in this open letter to explain again why you will not delete, why you will not allow all names into Landrush, and why you allow
    registrars to continue registering, who have plainly broken the rules, including members of your own board.

    I ask you, not in hostility, but because it's right and you know it is.

    With kind regards,

    Richard Henderson

    Berkhamsted Castle
    HP4 1LJ

    [ Reply to This | Parent ]
    by Anonymous on Saturday January 04 2003, @06:31PM (#10881)
    [ Reply to This | Parent ]
    Re: Did Jeff Davies find a legal loophole?
    by Anonymous on Saturday January 04 2003, @10:58PM (#10883)
    Quite a few hands in the Cookie Jar.
    [ Reply to This | Parent ]
    Since Afilias HQ is in Ireland, look at this Europ
    by Anonymous on Saturday January 04 2003, @11:25PM (#10885)

    3. (1) Subject to the provisions of Schedule 1, these Regulations apply to any term in a contract concluded between a seller of goods or supplier of services and a consumer which has not been individually negotiated.

    (2) For the purpose of these Regulations a contractual term shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer, taking into account the nature of
    the goods or services for which the contract was concluded and all circumstances attending the conclusion of the contract and all other terms of
    the contract or of another contract on which it is dependent.

    (3) In determining whether a term satisfies the requirement of good faith, regard shall be had to the matters specified in Schedule 2 to these

    (4) A term shall always be regarded as having not been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence its substance, particularly in the context of a pre-formulated standard contract.

    It seems to me that we have a pre-formulated standard contract, but the complexity is that Afilias themselves did not operate direct contracts with consumers (non-business customers), but rather, operated a contract which imposed terms for consumers through a second (registrar-consumer) contract which was dependent on Afilias's contract with the registrar.

    Certainly, there are strong arguments for suggesting that the contract operated in bad faith creating the "significant imbalance in parties' rights and obligations" to the detriment of the consumer.

    What I'd appreciate is opinion as to whether Afilias could be prosecuted under this (or other) EC law, on the grounds that their contracts created an imbalance (implemented in bad faith?) which caused unfairness, to the detriment of the consumer.

    The contracts they imposed on Registrars defined and determined the contracts that had to be imposed on consumers (Afilias have admitted as much).

    Does this make Afilias liable for the impact their (bad faith?) contracts had on consumers effected at one business layer below, in that the consumers contracts with registrars were those defined and required by Afilias?

    Richard Henderson

    [ Reply to This | Parent ]

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