[NA-Discuss] Pre-registrations

Gordon Chillcott gordontc at look.ca
Tue Jun 14 17:38:51 UTC 2011

Just as a follow-on to this topic, there is a promotional e-mail going
around from Network Solutions.   One of the "Hot Deals" this message
promotes is preregistration of "your .XXX".

In the text on the descriptive page is the statement that:

"Whether, you are associated with the Adult Industry or you are an
intellectual property or trademark holder interested in protecting your
brand, now is the time to pre-register for your .XXX domain name."

One wonders what expectations are raised by this . . .


On Tue, 2011-06-07 at 20:29 +0000, Michele Neylon :: Blacknight wrote:
> 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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