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

[George Kirikos]

Hi Jonathan,

The point I was trying to make with regards to the PDDRP is that it
might suffer from the same kind of rulings in the UK, whereby the
registry operator, after going through the PDDRP process initiated by
a TM holder complainant might find themselves unable to get the de
novo review of that PDDRP decision. i.e. due to the same "flip
flopping" of the roles of plaintiffs/defendants, where X suing Y in
court is subtly different from Y suing X in court, even though the
underlying issue in dispute is the same. I don't know if there's a
legal technical term for that difference, but I see it as a lack of
perfect symmetry (i.e. it actually does matter which party is the
plaintiff and which party is the defendant, in some circumstances).

Have a nice Thanksgiving holiday week.

Sincerely,

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



On Mon, Nov 20, 2017 at 9:00 PM, Jonathan_agmon icann
<jonathan.agmon.icann at ip-law.legal> wrote:
> George,
>
> Are you saying that the PDDRP is supposed to create a new cause of action under any national law? Why would you think that?
>
> I am unclear why you think that par. 22.1 below means that parties have "no 'cause of action' to actually have de novo court review in certain jurisdictions."?
>
> Can you explain your reasoning?
>
> The fact of the matter is that these DRMs are just dispute resolutions mechanisms. Legally speaking they are agreements between parties who agree to adjudicate certain disputes in accordance with certain rules.
>
> I'll be happy to understand what you are trying to say.
>
> Thanks,
>
>
> -----Original Message-----
> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of George Kirikos
> Sent: Tuesday, November 21, 2017 3:53 AM
> To: gnso-rpm-wg <gnso-rpm-wg at icann.org>
> Subject: Re: [gnso-rpm-wg] Availability of Court for Domain Name owners challenging a URS decision -- false assumption?
>
> By the way, this issue is likely not limited to just the URS/UDRP. It would appear to impact the PDDRP too, see the language of:
>
> https://newgtlds.icann.org/en/applicants/agb/pddrp-04jun12-en.pdf
>
> "22.1 The Trademark PDDRP is not intended as an exclusive procedure and does not preclude individuals from seeking remedies in courts of law, including, as applicable, review of an Expert Determination as to liability."
>
> (the word 'individuals' is strange in that sentence; I think they meant 'parties')
>
> If there's no 'cause of action' to actually have de novo court review in certain jurisdictions, then a registry operator might find themselves deprived of due process, should the PDDRP panel deliver an adverse decision to them. Given the number of registry operators based in the UK, and the enormous value of some of those TLDs, the need to ensure that they have access to courts too should be determined.
>
> [One can view which registries are based in the UK, or Australia, etc.
> and potentially vulnerable at:
>
> http://registrarstats.com/gTlds.aspx
>
> and sort by country]
>
> Sincerely
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