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Recent Case Notes & Commentary

Domain Name Registrar Inaction – Effect on UDRP Proceedings

It was, however, commented on in a recent case where the registrar had not replied to requests for verification from WIPO. The case was Petroleo Brasileiro S.A – PETROBRAS v. Private Registration (WIPO Case No. D2011-1250).

The facts

The Complainant had made four requests to the registrar (Bargin Register Inc.) to ascertain the language of the registration agreement so that it could decide the language in which to conduct the proceedings. However, the registrar did not reply. WIPO, where the proceedings were instituted, also made four requests of the registrar, namely for verification of the registrant’s contact information and standard assurances regarding its registration agreement. Again, the registrar did not reply.

The decision

The panelist, deciding the case in favour of the Complainant nevertheless went on and made several observations about the registrar’s conduct. The first was that it was “unhelpful and irresponsible”. The second was that it did not create, “any insurmountable jurisdictional impediment to the Centre’s and the Panel’s proceeding with this case”. The result, however, would mean the registrant’s billing information was not supplied by the registrar to the provider, meaning that the respondent /registrar might not be given notice of the proceeding. The registrar’s inaction might therefore be harming the respondent.

Moreover, as “without affirmative confirmation from a registrar that the disputed domain name has been locked to prevent breach of paragraph 8(a) of the Policy there is the danger that an unscrupulous respondent might engage in cyberflight.”

Nor could it be determined what language was appropriate for the proceedings if the registrar would not reply to requests.

Also: “The Center and Complainant cannot be certain that the registrant is bound by its registration agreement to submit to a legal proceeding in the courts in the jurisdiction in which the registrar is located. “

The panelist added that the same registrar had also fallen down on the job as had been seen in Onduline v. Private Registration Do (WIPO Case No. D2011-1129).

The inaction by the registrar might also force the Complainant to bring legal action in a foreign court rather than proceed using the UDRP.

As in Onduline, the panel requested that WIPO advise ICANN of the unsatisfactory conduct of the registrar’s conduct.

Suggestions for reform

The panelist then made some comments on how these problems could be avoided in the future.

The Panel urged ICANN “to take appropriate steps to encourage or require as a matter of standard contracting practice timely registrar replies to UDRP provider verification requests.”

Not to have that standard from registrars “can only come at a cost to the credibility of its processes in the eyes of interested parties…”.

The panelist realised that there was a limit to what WIPO or the panelist could do, but that the exhortation to ICANN was desirable. The decision is therefore a welcome reminder of the importance of ICANN keeping a watching brief on the conduct of its registrars.


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