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

[George Kirikos]

Hi folks,

Just to followup on last week's email:

On Wed, Jul 19, 2017 at 6:46 PM, George Kirikos <icann at leap.com> wrote:
> 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.

Patricia McMahon of Torys (same law firm I used for the successful
Pupa.com domain dispute litigation):

http://www.torys.com/people/mcmahon-patricia

looked into this for me, and confirmed my thoughts on the 'in rem'
alternate approach (i.e. as opposed to, or even in conjunction with an
in personam case brought against the IGO) to oppose a UDRP transfer
decision, at least in Canada:

"Building on the Court of Appeal’s finding that a domain name is
intangible property (See Tucows.com Co. v. Lojas Renner S.A.),[
http://canlii.ca/t/fmjtv ]  the recent case of Western Steel and Tube
Ltd v. Technoflange Inc. [ http://canlii.ca/t/h3j5g ] suggests that,
where proper procedures are followed, an in rem declaration may be
available to protect domain names. Such claim for a declaration would
be brought under section 97 of the Courts of Justice Act.
Unfortunately, the decision of the trial judge who awarded the in rem
declaration in Western Steel Tube is not available, so I have not been
able to read the court’s reasoning on the point."

(she said it was fine if I shared this with the working group; we're
trying to get a copy of the Western Steel Tube trial judge decision,
too)

Anyhow, we had a 30 minute conversation earlier today after I received
her written analysis where we ran through various scenarios/options,
including the Options 1, 2, 3, 4, etc. that our PDP has been
contemplating, and based on that I don't think we've "missed anything"
as a group as to what the implications would be of the various
approaches/proposals.

Sincerely,

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