Your comments are most welcome

[Alex Gakuru]

Yes! indeed confirms my fears... thank you!

On Tue, Oct 13, 2009 at 12:36 PM, Konstantinos Komaitis
<k.komaitis at strath.ac.uk> wrote:
> Dear Alex,
>
> You have certainly every reason to be worrying about paragraph 20 of the
> Regulations - but I would extend this worry to the whole section. According
> to its wording, Registrars are legitimized to proceed to content-related and
> apply any other subjective criteria until they manage to 'satisfy themselves
> that the name so submitted". This is very dangerous. It gives an
> unprecedented level of discretion to registrars to proceed to evaluations
> that fall completely outside their scope. the system can be gamed and abused
> easily, mainly by trademark owners but not only. Registrars are not
> authorized legal agents and they should not act accordingly. Especially
> since the regulation imposes such harsh penalties, leaving such wide
> discretion to registrars endangers the whole idea behind registering domain
> names (innovation, entrepreneurship, etc). In what capacity will registrars
> operate and what criteria will they apply in determining "contrary to the
> law" and " does not infringe the rights of third parties"?
>
> Finally, the registrar is given too much power being able to revoke the name
> at any time and I also find a, b, c, and d highly vague and problematic.
> Only courts or an ADR is system - if is applicable and legitimate - can
> determine these issues. Not registrars, which they only perform technical
> management of the domain names. imagine for instance what would happen if
> NSI were to determine whether a domain name is contrary to the law or
> infringes the rights of third parties. it would be dangerous and would
> create legal upheaval.
>
> Hope this helps.
>
> KK
>
>
> On 12/10/2009 20:09, "Alex Gakuru" <gakuru at GMAIL.COM> wrote:
>
>> Colleagues,
>>
>> Below is an excerpt from our draft regulations. I am uncomfortable
>> with 20 (1) c. "does not infringe the rights of third parties;"  which
>> I find very generic and prone to abuse by Intellectual Property
>> 'domain name rights' holders compared to "first come first served
>> domain name registrations tradition.  Furthermore this would imply
>> imprisonments for such registrars in view of 25 (1) and (2).
>>
>> Would you kindly care to comment for our legal team to take note on
>> our comments to be submitted soon?
>>
>> regards,
>>
>> Alex
>>
>> ----snip---
>>
>>                       20.   1) Registrars shall, before registering
>> any domain name,
>> Obligations of              satisfy themselves that the name so submitted:
>> Registrars                   a. complies with the guidelines issued pursuant
>> to
>>                                        regulation 18;
>>                                    b. is not contrary to the law;
>>                                    c. does not infringe the rights of
>> third parties;
>>                                    d. does not improperly give the impression
>> of
>>                                        pertaining to public
>> administration or the exercise
>>                                        of public powers
>>                            2) The Registrant shall be the holder of
>> the registered
>>                                domain name; provided that the
>> Registrar reserves the
>>                                right to recall the registered domain
>> name if it is
>>                                established that the registration was
>> contrary to these
>>                                Regulations.
>>
>>                    21. Liability for the infringement of third party
>> rights and interest
>> Limitation of       arising from holding or using a domain name shall
>> be borne by
>> Liability              the Registrant.
>>
>>                   PART IV:MISCELLANEOUS PROVISIONS
>>
>>                    25.
>> Offences and           (1) Any licensee who contravenes the provisions of this
>> Penalties              Regulation commits an offence.
>>
>>                        (2) Any person who commits an offence under these
>>                        Regulations shall be liable on conviction to a
>> fine not exceeding
>>                        three hundred thousand shillings or to
>> imprisonment for a term
>>                        not exceeding three years or both.
>> <http://www.cck.go.ke/UserFiles/File/E-transactions%20draft%202%20fair%20draft
>> .pdf>
>
> --
> Dr. Konstantinos Komaitis,
> Lecturer in Law,
> GigaNet Membership Chair,
> University of Strathclyde,
> The Lord Hope Building,
> 141 St. James Road,
> Glasgow, G4 0LT,
> UK
> tel: +44 (0)141 548 4306
> email: k.komaitis at strath.ac.uk
>
>
>