[NA-Discuss] Pre-registrations

Tue Jun 7 20:29:00 UTC 2011

On 7 Jun 2011, at 16:49, <ebw at abenaki.wabanaki.net>
 <ebw at abenaki.wabanaki.net> wrote:

> Michele,
> 
> You asked "How is accepting pre-registrations / expressions of interest
> a matter for Compliance?"
> 
> Consult your contract. If it specifically directs Blacknight to pay to
> ICANN a registration fee for the registration of domains in generic
> top-level domains that don't exist, then there may not be a compliance
> issue.
> 
> Otherwise, upon what basis is the conduct of offering, whether for a present
> fee, or for the expectation of fees, direct or consequent, registrations of
> domains in generic top-level domains that don't exist claimed to be within
> the scope of which (there are several to choose from) registrar accreditation
> agreements?
> 
> Where this question and answer may go is to an area the Intellectual
> Property Constituency has raised a significant claim, and some, but not
> all, of the Registry Consituency members have attempted a defense.
> 
> What is, or should be, the liabilities of a party which is aware of systematic
> misconduct?
> 
> The IPC wants to attach liabilities to the registries which are aware of
> systematic conduct by some registrars. This would not affect registries
> such as .cat and .coop, but it would affect the CNOBI set, and possibly
> others.
> 
> So what is, or should be, the liabilities of a registrar which systematically
> registers or "pre-registers" domains which cannot resolve, or which is aware
> of a reseller which engages in the same conduct?
> 
> I've been involved in the registrar constituency from 2003 to 2010, and ran
> for its chair along with Bhavin (who won) and Jordyn.
> 
> There are registrars who's business model was not dependent upon exploiting
> the Add Grace Period (domain "tasting"), and similar. I do not think the
> necessary response of any Registrar Accreditation Agreement holder to a
> proposed limit on permissible conduct must be in the negative. There are
> registrars for which the weakest interpretation of their contract with the
> corporation is not the best interpretation, or the sole source of information
> to their business plan.
> 
> Your milage may vary, of course, but just as Jean-Christophe Vignes (then
> of EuroDNS), Stephane Van Gelder (INDOM), Volker Greimann (Key-Systems)
> and yourself Michele Neylon, (Blacknight Solutions), argued articulately
> when advancing the Open Registrar Proposal [1], from the point of view of
> parties to the European legal tradition, the text of a contract is only
> a part of the complete agreement between the contracting parties.
> 
> This is a cultual difference from the Anglo-American legal tradition, in
> which any conduct not specifically barred by the contract is permitted, or
> "anything goes if not specifically prohibited".
> 
> I'm puzzled by the change of perspective, but as I mostly engaged with
> Volker in the VI WG, perhaps his view was not genral to all the advocates
> of the Open Registrar Proposal. Ireland is not a Civil Law jurisdiction
> and that may explain a preference for the "what is not prohibited is
> permitted" construction of a contract.
> 
> Eric
> 
> [1] The ORP had fewer limits on cross ownership than the RACK+ and JN2
> proposals, more limits than the CAM proposal), and central to this issue,
> increassed support for ICANN's compliance function. Vertical Integration
> Working Group,

Eric

I'm not either agreeing or disagreeing with you, nor have I changed my opinions. 

I was, however, interested to see why you thought there could be a compliance issue and your explanation is welcome (which is why I'm quoting the entire text above, to keep the context)

I personally don't see an issue with a company gathering "expressions of interest" for a service (or product). We've done it in the past and we will do it in the future for a variety of products and services.

Calling it a "pre-registration", in my personal view, could be problematic, especially if it is done in such a way that the "registrant" is given the impression that they have done anything more than "express interest". And I can also see how many people would find the use of potentially misleading language to be problematic. Whether that raises it to the level of being a compliance issue or not I'll leave to the lawyers.

And in the interests of disclosure, it is for those reasons that you won't see me rushing to throw up a "pre-registration" page on any of our sites for any non-existent domain name extensions any time soon. However you might find us asking people to "express interest" and offer them the opportunity to join a mailing list or similar with information about the upcoming release of a TLD. I don't see that as being problematic for anyone.

Regards

Michele

Mr Michele Neylon
Blacknight Solutions
Hosting & Colocation, Brand Protection
ICANN Accredited Registrar
http://www.blacknight.com/
http://blog.blacknight.com/
http://blacknight.mobi/
http://mneylon.tel
Intl. +353 (0) 59  9183072
US: 213-233-1612 
UK: 0844 484 9361
Direct Dial: +353 (0)59 9183090
Fax. +353 (0) 1 4811 763
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