Your comments are most welcome

[Konstantinos Komaitis]

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