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

[Mary Wong]

Hello again George and everyone,

Just to clarify that the staff concern is not about the UDRP or the language therein; rather, it stems from the assumption in Option 1 that a legally enforceable panel decision can be set aside by decree/decision/policy amendment of ICANN. It’s actually a separate point from what ICANN can bind Contracted Parties to do via contract and the “picket fence” of ICANN Consensus Policy. In other words, even if the UDRP as a Consensus Policy were modified along the lines of Option 1, yes that would be binding on all Contracted Parties, but it would in our view nevertheless still be something that may be legally questionable. 

Nothing in the UDRP takes away a person’s legal rights – however, declaring that a panel decision is voided when there has not been either an arbitral appeal or court hearing to determine the merits of that decision may.

I hope this clarifies the staff concern.

Thanks and cheers
Mary

On 7/20/17, 10:58, "gnso-igo-ingo-crp-bounces at icann.org on behalf of George Kirikos" <gnso-igo-ingo-crp-bounces at icann.org on behalf of icann at leap.com> wrote:

    Hi Petter,
    
    On Thu, Jul 20, 2017 at 10:20 AM, Petter Rindforth
    <petter.rindforth at fenixlegal.eu> wrote:
    > So, if the case is taken to a court (within those 10  - working - days), and
    > the case is dismissed, the only thing the complainant has to do is to show
    > such decision to the Registrar:
    
    As I've noted separately, that might not be enough, especially because
    there might be parallel litigation relating to the domain name itself
    (in rem, or other creative options). The ICANN policy only
    contemplates **one possible scenario** as to the litigation that might
    be taken against a domain name in dispute during/after a UDRP. If that
    was the *only* litigation surrounding the fate of that domain name,
    then that might be the end of the story. But, it need not be. Whenever
    there is active litigation, registrars will tend to put a litigation
    hold on the domain pending the resolution of ALL active cases. If that
    parallel litigation survives, the registrar would hold the status quo
    until all active court processes are exhausted.
    
    I think folks are not thinking outside the box here, they've been
    perhaps mesmerized by re-reading the UDRP policy too often and
    thinking that it's the alpha and omega of the relevant law. It's not.
    There's a whole world of real law that exists outside the UDRP. Just
    because ICANN delineates one possible course of litigation with
    respect to challenging the outcome of a UDRP doesn't mean that a
    registrant is bound to use *only* that mechanism. ICANN has no say
    over any other legal mechanism(s) a registrant uses to assert their
    ownership claim before a relevant national court. Just like ICANN has
    no say over any legal mechanism(s) a non-registrant uses to dispute a
    domain name without resorting to use of the UDRP.
    
    Sincerely,
    
    George Kirikos
    416-588-0269
    https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=AQj2USvpSfMMuWsvCLaTiM0KNUGq80qeLmRqzK6njOA&s=2el7c1eJO2XS9X_3G3CZop_Ww5J4axcyDoV_ik6CIsQ&e= 
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