Registrar Violations of Contractual Obligations

Registrar Violations of Contractual Obligations

    In a letter dated April 16, 2008, WIPO calls ICANN’s attention to "certain registrar-related practices ... having a potentially adverse effect on the function of the ICANN-mandated Uniform Domain Name Dispute Resolution Policy." While only a handful of registrars is implicated, the letter is a wake up call against complacency. Some of the practices identified by WIPO are inconsistent with and others are in violation of the ICANN Registrar Accreditation Agreement (RAA). The RAA is "[o]ne of the key contracts in the DNS network concern[ing] the obligations of registrars." It establishes, among other things, procedures for responding to notices of domain name disputes. Delay or worse can only undermine the operation of dispute resolution regime. A copy of the letter is available at http://www.wipo.int/export/sites/www/amc/en/docs/icann160408.pdf .

    The practices includes failures to 1) respond timely to WIPO Center requests for verification of registrants’ names and other pertinent information, 2) provide incorrect or unclear information, 3) timely lock disputed domain names, 4) permit changes in registrant identity, 5) implement decisions. WIPO cites several cases for each practice and records its dismay at what it sees as a degeneration in compliance with the RAA. In the most recent case, The Saul Zaentz Company d/b/a Tolkein Enterprises v. Eurobox Ltd. / "The Saul Zaentz Company", D2008-0156 (WIPO May 20, 2008), the registrar permitted a change in registrant identity after the complaint was filed. Cyberflight as it is called is forbidden under Paragraph 8 of the Policy. The Panel stated that it "suggests that the Respondent has sought to frustrate these proceedings." It also suggests collusion with the wayward registrar.

All of the practices are disturbing; some particularly so. When the registrar fails to respond promptly to the Provider’s request for verification it leaves the Center with having to proceed on the basis of the WhoIs database and uncertain as to whether the registrar has frozen the domain name. The WIPO letter explains that the

consequences for proceeding without the registrar’s confirmation as to the locking and status of the disputed domain name may be that – and the Center has had examples of such situations – a disputed domain name is improprerly deleted during the proceeding, or transferred to another registrant, and/or re-registered with another registrar.

    The registrar in Danware Data A/S v. Texas International Property Associates, D2007-0945 (WIPO October 10, 2007) failed to respond; a different registrar in Lime Wire LLC v. MM (Mike Morgan), D2007-0620 (WIPO August 20, 2007) allowed the registration to cyberfly to another registrar.

    In addition to the uncertainty of having to chase after the real registrant, a situation one Panel describes as a "Russian-doll scenario[]," TDS Telecommunications Corporation v. Registrant [20758] Nevis Domains and Registrant [117460] Moniker Privacy Services, D2006-1620 (WIPO March 7, 2007), there is the unanticipated delay in deciding the cases, which is a bonus for the respondent and a burden for the complainant.

    As to an appropriate remedy for registrar breach of contract, the issue is cloudy because the consequence of terminating a registrar’'s accreditation impacts its registrants. The matter was recently discussed by Paul D. McGrady in a recent Expert Note entitled ICANNs New Post UDRP Non-compliance Grievance Process.