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

Tue Nov 28 02:25:21 UTC 2017

A long long time ago, Korea had a similarly worded law (that was changed a while back).  Essentially, the rule was that if a complainant won a UDRP (or court) case in Korea, the only remedy was cancellation.  Even if the UDRP panel ordered “transfer.”  The law was written with KIDRC in mind (.kr) but the wording essentially forbade Korean registrars from transferring the domain name.  The ADNDRC was instrumental in explaining the issue to lawmakers, starting with the judiciary, and getting the law changed so that the law no longer clashes with the UDRP.  I don’t recall the exact wording of the law, but it was similar to the wording below. There may be translation issues, and I’m sure the entire text isn’t provided, but the text below does not say the UDRP decision is final and no one can bring a de novo claim.  The text, as I read it, EITHER says that a registrar shall uphold a decision by either a UDRP panel or a court to cancel a domain name OR that the only remedy is cancellation.

I am probably getting in the weeds here, but the point is, we still don’t have any statutes before us that clearly say a UDRP administrative decision is final and cannot be challenged de novo in a court of competent jurisdiction.

Kristine

From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of socata
Sent: Friday, November 24, 2017 12:43 AM
To: George Kirikos <icann at leap.com>; gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] Availability of Court for Domain Name owners challenging a URS decision -- false assumption?

Dear George,

First of all, this rule is come into force in Nov 1, 2017, and the prior China Domain Name Governance Rule has been terminated according to the article 58 in the new rule.
According to the prior China Domain Name Governance Rule, which come into force in 2004, its article 38 do say that if decision made by court is different with the domain name resolution organization, the court's decision should be applied. However, this part is deleted in the New rule.
You may refer link hereinafter for the old rule: http://www.gov.cn/gongbao/content/2005/content_64290.htm

China Domain Name Governance Rule is applied for all TLDs, if you read the full text, you will find the rules provide some significant restrictions for the registries and registrars.
The Google translation for article 43(3) is definitely incorrect. The correct translation should be: if there is a decision made by domain name resolution organization or court, registrar should cancel the domain name registration. This article also support the understanding that the decision made by domain name resolution organization have equal effect with the court in China.

However, for the case of canary, I do admit that the domain name is still owned by Lin Zanfu, and I am really curious about the situation. According to my search, I don't find any appealed suit about domain name dispute in China about this case. I will keep an eye on this case.

If you guys have any useful information for this two case, please feel free to tell me, I am sincerely interested to figure out what happens.

--
Zhou Heng
Ph.d Candidate
Renmin University of China

At 2017-11-23 23:30:11, George Kirikos <icann at leap.com<mailto:icann at leap.com>> wrote:

>Hello,

>

>On Thu, Nov 23, 2017 at 10:13 AM, socata <socata at ruc.edu.cn<mailto:socata at ruc.edu.cn>> wrote:

>> I would like to provide some my information for this issue in China

>> jurisdiction.

>>

>> According to China Domain Name Governance Rule, the decision made by Domain

>> Name Dispute  Resolution Panel decision is final decision in China.

>> You may see  article 42 in  China Domain Name Governance Rule for detail

>> information.

>>

>> Link for China Domain Name Governance Rule:

>> http://www.miit.gov.cn/n1146295/n1146557/n1146624/c5778555/content.html

>

>Thanks for your message. Is that for the .cn ccTLD? Or does that apply

>rule to gTLDs like .com? (the Google Translation is a bit confusing to

>me)

>

>I know that the Canary.com UDRP decision against a Chinese registrant

>from 4 years ago wasn't final, as the domain name is still owned by

>that registrant (I believe they appealed in court):

>

>https://www.thedomains.com/2013/10/24/disturbing-12-year-old-canary-com-lost-in-udrp/

>http://www.adrforum.com/domaindecisions/1515762.htm

>

>I believe the same thing happened for Razer.com in early 2016:

>

>https://www.namepros.com/blog/razer-upgrades-from-razerzone-com-to-razer-com-legal-battle-revealed.1050304/

>

>albeit in Hong Kong. Of concern, the original UDRP decision does not

>appear on the ADNDRC website.

>

>Sincerely,

>

>George Kirikos

>416-588-0269

>http://www.leap.com/

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