[gnso-rpm-wg] Availability of Court for Domain Name owners challenging a URS decision -- false assumption?

claudio di gangi ipcdigangi at gmail.com
Mon Nov 20 01:05:07 UTC 2017


George,

I was referring to this proposal that you put forward (on the basis that
eliminating the UDRP and URS is not going to happen):

(2) in the event a court refuses to hear a case brought by the domain
name owner challenging a URS (or UDRP) ruling, then the URS (or UDRP)
decision needs to be set aside, and the TM owner can instead file a TM
dispute themselves directly in real court if they want to take the
dispute further.

Your proposed solution would create a carve-out for jurisdictions like the
U.K. and Australia (again I have not read the case you cited, nor have I
researched the laws in those countries), so the UDRP would not be
applicable to registrants in those countries since you are saying they are
not able to appeal the ADR decisions, correct?

My concern is that this would allow cybersquatters the means to register
their domains (based either on false WHOIS or an actual P.O. box) in those
countries and circumvent these ADR procedures.

Please let me know if I misunderstood any parts of your proposal?

Best,
Claudio

On Sun, Nov 19, 2017 at 7:34 PM George Kirikos <icann at leap.com> wrote:

> Hi Claudio,
>
> Thanks for your response.
>
> On Sun, Nov 19, 2017 at 6:59 PM, claudio di gangi <ipcdigangi at gmail.com>
> wrote:
> > 1) is the decision in the case you cite appealable to a higher court? If
> > yes, the issue may not be 'settled law' until that potential appeal is
> > raised by the moving party and considered by a 'higher' court within the
> > jurisdiction.
>
> I'm not aware of any domain name case has proceeded to a supreme court
> or highest court in any jurisdiction worldwide. So, to talk about
> "settled law" --- by what standard? These are real cases, where
> ICANN's policy is causing the problem. And read the commentary on
> out-law.com, lexology.com, etc. that I included (and there are other
> articles too). TM lawyers are exploiting that vulnerability.
>
> > 2) whether a court has jurisdiction over a particular case is a legal
> issue
> > that can be changed potentially by passing a new statutory law (or
> sometimes
> > even by amending the constitution). For example, this happened in the
> United
> > States with the anti-cybersquatting legislation you mentioned. If this
> > jurisprudence is limited to the UK and Australia, then it's possible the
> > laws in these countries can be updated to bring them more in line with
> > international norms.
>
> Expecting that legislatures around the world are going to prioritize
> creating new legislation to fix a problem that ICANN has created is
> not realistic. That's reversing the way things should be. Countries
> create their own legislation based on their own value systems, etc.
> ICANN has to be careful to not create policies that interfere with
> those laws (I don't want to open up the WHOIS debate, or GDPR, but see
> that the identical issues are engaged there; they're not going to
> change their laws to help fix ICANN's problems).
>
> > One other thought: if the solution you mention in #2 below were to be
> > adopted, then cybersquatters could simply register their domains with
> false
> > Whois information corresponding to that country, and the ADR procedures
> > would no longer be applicable. This would be an exception that swallows
> the
> > rule.
> >
> > I recall this type of gaming has happened on a similar topic: a company
> > based in India was offering 'services' to registrants because the appeals
> > process takes a long time in India, so a trademark owner would have to
> wait
> > years before they could get the domain transferred, see:
> >
> >
> https://www.inta.org/INTABulletin/Pages/UDRPHijackingAvoidinganInvoluntaryPassagetoIndia.aspx
>
> The example you cite (perhaps I'm misreading it) doesn't appear to
> involve fake WHOIS. It appears to be real WHOIS (i.e. they
> incorporated a real entity in India; just like Amazon, Apple, etc.
> incorporate entities around the world to take advantage of favourable
> jurisdictions for taxes or IP in Ireland, Cayman Islands, etc.).
>
> If it actually did involve fake WHOIS (i.e. a totally fabricated
> entity that didn't exist), that fake entity wouldn't be able to have
> standing to bring any case anywhere (i.e. I would think that the very
> first thing a good law firm representing a TM owner would do is have
> the case against them dismissed because the entity bringing the action
> doesn't really exist!).
>
> Fake WHOIS could also be handled via WHOIS accuracy complaints.
>
> > I am qualifying my statements because I have not read the case you
> > identified, but hope you find this feedback helpful.
>
> I do find it helpful, yes. We should definitely consider any "edge
> cases" to the "fixes" we deploy.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
> _______________________________________________
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> gnso-rpm-wg at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>
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