[NA-Discuss] Pre-registrations

[ebw at abenaki.wabanaki.net]

Jothan,

> ... prominent pre-registration sites for 201X new TLDs, United Domains
> and Pool ...

There's a joke there somewhere, something about something that does not
yet exist being offered as already expired.

> ... neither are collecting money ...

Neither did NetSol prior to a specific point in time, but it did acquire
market share which at a later point in time it was successful in converting
to a fee for service. 

> ... setting any expectations about their service ...

The mere offer creates a duty to meet an expectation, whether it is the
"reasonable person" standard or the "informed domainer" standard, or
something else, is TBD.

> ... to a person actually obtaining the domain name ...

Again, the expectation depends on what the standard is, and while the
ad copy may have me laughing that UD has a way to get the .usa inventory
past the DoC, it may look pretty good to the targets of other deceptive
advertizing.

> These objective criteria ...

My point above being that these are not objective criteria, this is what
attornies for the FTC do for a day job, is test marketing propositions
for liability under existing law. Further, they are of no use to the
issue of trying to ask what the RAA (any version) has to say about the
conduct by a registrar, or a reseller, and cannot replace ICANN's own
statement on the issue.

Your next point is a real stretch:

> It seems like the pre-registrations are largely demonstrative as
> reasonably good empirical evidence for ...

As the numbers are significantly less than the 100k number that was
posited at what became the kick-off of the Vertical Integration Saga,
and most I knew assumed that 100k was a safe upper bound for the size
of the defensive+generic buy, which is why the RACK+ and IPC positions
on exceptions (to Recommendation 19, the requirement for registrars)
was in the few thousands, to eliminate registries-as-gamed-marks+generics,
I read those numbers as failing to predict the sunrise/landrush buys of
the "top ten" ranked propositions.

Not "proof" that a benefit (as yet unidentified) is greater than a
(well known) cost.

> Those are two examples that are operating in the realm of reasonable
> practice ...

There is an ICANN Registrar Advisory Concerning Inappropriate Lending of
Registry Access from 12 February 2002 that may be relevant to this
representation.

I agree with your final two paragraphs.

Eric