[Gnso-igo-ingo-crp] Attempt at Achieving Full Consensus -- Option #4

[George Kirikos]

Hi folks,

On Wed, Jul 19, 2017 at 10:16 AM, Phil Corwin <psc at vlaw-dc.com> wrote:
> As we prepare for this week’s call, I wanted to address your concern that I
> was citing unnamed attorneys for the proposition that, if an IGO
> successfully asserted an immunity defense today in a judicial appeal brought
> by a domain registrant following an adverse UDRP decision the dismissal of
> the court case would result in the release of the hold on the UDRP decision
> and the subsequent extinguishment or transfer of the domain at issue. I was
> by no means trying to pad this conclusion by the fact that I had also
> conferred on this matter with some colleagues who engage in UDRP practice
> (generally for registrants, not complainants), but I simply don’t feel that
> I have the right to name these people to this list. That said, we had a
> dialogue on this matter during our June 15th meeting and both Petter and
> Paul Keating concurred with that conclusion (see transcript of audio and
> chat below).

Exactly how much research time was devoted into coming up with those
opinions? I note Professor Swaine's opinions came with much scholarly
research and time invested, and cited authorities of various courts.
Instead, these conclusions come with no legal authorities.

> A look at the text of the UDRP leads to the same conclusion as well:

It's been assumed in the analysis that the only court action must be
against the complainant (IGO) in the UDRP. That need not be the only
option open to a domain name owner.

I've actually talked to my own lawyers about how best to approach
things (I've already hinted on this list how that would happen, even
if the IGO could assert immunity successfully, for the sake of
arguments). I'll see if I can share the results of that (paid)
research later this week or next, once that research is concluded.

Not to pick on Paul Keating, but he's also the person who last week
presented a proposal "after much consideration" that contained a very
serious flaw (forgetting to look at the supplemental rules) that
undermined that opinion in mere minutes of research:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000785.html

That doesn't necessarily mean his conclusion on this other issue is
wrong, but I don't think it's necessarily right (see the section I
highlighted above, and past discussions on strategies of dealing with
an appeal without involving immunity). Legal issues are rarely "easy"
----- they might look like that "on paper". Just like in sports,
someone might appear an "overwhelming favourite", but that's why they
play the games, to see who actually wins, instead of relying on "paper
matches" or theory. The fact that there are no direct precedents on
these issues (domain cases involving IGOs that have gone to the
courts) leaves lots of room for doubt on all sides.

> Finally, in regard to the language of the Tucows agreement that you cited,
> that is of course between the registrar and its registrant customer and does
> not bind an IGO complainant.

It does bind the IGO complainant, the moment the domain name transfers
to them!  An IGO can't be a registrant without agreeing to the
registration agreement, which would again subject them to the
jurisdiction of the courts for disputes.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/