[Gnso-igo-ingo-crp] Option #6 reminder

[George Kirikos]

At the last call, I was asked to resubmit Option #6 for discussion.
One can read the original proposal at:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000811.html

Conceptually, it's very simple. While other options consider what to
do if one gets into the "special situation" we've discussed at length,
this option is different because it would reduce the number of those
special situations, by attempting to avoid the special situation
entirely.

The domain name owner mitigates the problem by suing "in rem" against
the domain name itself, where the IGO isn't a named defendant and thus
can't assert immunity at all.

Option #6 simply modifies 4(k) of the policy, which currently requires
that the registrar should lock the domain name if a case is brought
against the UDRP complainant (i.e. "in personam"), to lock the domain
name if any case is brought concerning the domain name dispute (in rem
or in personam). The only effect of Option #6 is to require the
locking in that situation (in rem suit) --- a domain name owner could
already sue in rem if they wanted to, but it's uncertain whether or
not a registrar would lock the domain name if they did so. Option #6
removes that uncertainty.

This would actually be consistent with the first part of 4(k), which
didn't specify that the case needed to be brought against the
complainant, i.e it only said:

"The mandatory administrative proceeding requirements set forth in
Paragraph 4 shall not prevent either you or the complainant from
submitting the dispute to a court of competent jurisdiction for
independent resolution before such mandatory administrative proceeding
is commenced or after such proceeding is concluded."

It was only later on that the language (sloppily, in my opinion)
required it to be "in personam", not contemplating that one might
submit the dispute to a court of competent jurisdiction in another
manner.

Section 18 of the UDRP "Rules" at:

https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en

actually contemplate any type of dispute (could be in personam, could
be in rem), using the phrase "any legal proceedings....in respect of a
domain-name dispute".

Thus, Option #6 is entirely consistent with the spirit and intent of
the UDRP rules, and simply fixes language that was overly restrictive
due to oversight by the drafters of the policy.

Sincerely,

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