[GNSO-RPM-WG] [gnso-rpm-wg] "Lack of cause of action" followup (URS proposals #18, #19, #20)

Scott Austin SAustin at vlplawgroup.com
Fri Oct 12 17:31:04 UTC 2018


Rebecca:
Surely you're not inferring that only Georges and rightsholders need to provide evidence. Where is the evidence of cases supporting your suggestion of respondent defaults because the URS is scary or a URS notice was screened out as spam. More importantly, beyond gaming, has your research uncovered any domains suspended under URS that were owned by serial cybersquatters, criminals or intended to support sites for more malicious abuses such as human trafficking, spear phishing, identity theft schemes, etc.
And where is the cost-benefit analysis to show that the errors in URS decisions to date have been so great to warrant nullifying the extraterritorial benefits of the URS and force small businesses to litigate all over the world.

Scott



Sent from my T-Mobile 4G LTE Device


-------- Original message --------
From: "Tushnet, Rebecca" <rtushnet at law.harvard.edu>
Date: 10/12/18 12:06 PM (GMT-05:00)
To: "Nahitchevansky, Georges" <ghn at kilpatricktownsend.com>, Nat Cohen <ncohen at telepathy.com>, George Kirikos <icann at leap.com>
Cc: gnso-rpm-wg at icann.org
Subject: Re: [GNSO-RPM-WG] [gnso-rpm-wg] "Lack of cause of action" followup (URS proposals #18, #19, #20)


The fact that the URS is streamlined is precisely why there needs to be a robust review mechanism for errors (or even legitimate misunderstandings because of the extremely limited record).  We all have our priors about what makes default likely (I believe that often it's because the URS claim is legitimate, but sometimes it's because the URS claim is scary or even just screened out as spam/some other incomprehensible message).


What needs evidence, however, is a claim that many defaulters would take steps to initiate court proceedings if there were a provision making clear--as ICANN intended--that court proceedings are a backstop to the URS.  I haven't seen that evidence, even though there are countries that do allow URS (and UDRP) losers to go to court. And I don't see any connection between cutting off URS review and allowing a court challenge; again, many countries do allow this and I've seen no evidence that there is gaming behavior in those countries, though perhaps Georges can provide some.


Rebecca Tushnet
Frank Stanton Professor of First Amendment Law, Harvard Law School
703 593 6759
________________________________
From: GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> on behalf of Nahitchevansky, Georges <ghn at kilpatricktownsend.com>
Sent: Friday, October 12, 2018 11:22:49 AM
To: Nat Cohen; George Kirikos
Cc: gnso-rpm-wg at icann.org
Subject: Re: [GNSO-RPM-WG] [gnso-rpm-wg] "Lack of cause of action" followup (URS proposals #18, #19, #20)


Nat:



Just a few comments.  The case you refer to was not a fully litigated case, but was a settlement.  As you likely know, people and companies often settle because they do not want the extensive cost of a US litigation , which can be in the hundreds of thousands of dollars (and even in the millions depending on the matter).  So absent a litigated court decision, what you have are parties transacting a resolution – albeit in this case apparently favorable to the Respondent.  It is not a decided case and has no precedential value.



The court review proposal for the URS is actually something that is frought with issues.  You have to begin that the URS is a streamlined/expedited procedure that is meant to address a very specific group of domain names being abused.  The URS has a higher burden proof than the UDRP (clear and convincing versus preponderance of the evidence standard) and only results in suspension of the domain name for a short period as opposed to a full transfer of the domain name to the complainant, as is the case in the UDRP.  That means there needs to be fairly compelling proof of abuse just to get a temporary suspension.  Second the URS has already built in procedural measures that allow a Respondent to challenge a decision – namely, a defaulting Respondent has a time period after a decision is rendered to challenge the decision and there is an appeal mechanism in place.  Third, the statistics prove that very few Respondents actually challenge the decisions rendered through the existing mechanisms.  Now some argue with no evidence that the default rate is somehow based on a lack of notice, but quite frankly that is absurd.  Domain name registrants at the very least have a provided a valid address to the registrars for their domain names (they have an obligation to do so).  So they get an email that there is an action involving their domain name.  There is no evidence that respondents are not receiving emails from providers.  Moreover, perhaps the reason Respondents default in so many instances is the fact that their cases are indefensible and they know it.  I would venture that a number of Respondents simply do not bother defending cases that they are likely going to lose.  Simply look at the list of domains subject of the URS and it is fairly clear that the vast majority involve known brands either alone or with terms that relate to the businesses under the marks.  Lastly, adding on a court review over a short term suspension (the relief currently in place) is likely to create a windfall to Respondents that will allow bad actors to easily defeat the entire URS process.  I am not sure if you have ever litigated cases in countries around the world, but in some countries court proceedings can last for years (up to ten years in some instances).  If a court proceeding can simply prevent the suspension, then I can see a situation where a Respondent falsely uses an address in a country where proceedings take forever and where they can be filed cheaply and essentially defeat the entire suspension period.



So in all, if you want to pursue court proceedings post URS, then I think there needs to be procedural safeguards put in place for Complainants, such as (1) a shorter time frame for a Respondent to challenge a decision on a default, or the removal of such a procedure, (2) a shortened appeal period (20 to 30 days), (3) a transfer of the domain name post URS as opposed to a suspension and/or a lock preventing use of the domain name during proceedings, and (4) some form of bond being posted by a challenging respondent or complainant that wants to ultimately proceed in court.  On the last point, the challenging party would need to file the appeal first and if the party lost the appeal it could then proceed to court, but would have to post a bond with the provider to cover costs if the appeal is deemed frivolous by a court.





From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> On Behalf Of Nat Cohen
Sent: Thursday, October 11, 2018 10:28 AM
To: George Kirikos <icann at leap.com>
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] "Lack of cause of action" followup (URS proposals #18, #19, #20)



George,



Thanks for providing this background.



Speaking for myself, and I believe many other domain registrants, the ability to have judicial review of any URS/UDRP decision is an important safeguard.  Even unanimous 3-member panel UDRP transfer orders have been overturned in court, as with the austinpain.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttp-3A__austinpain.com%26d%3dDwMGaQ%26c%3dWO-RGvefibhHBZq3fL85hQ%26r%3dE-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0%26m%3dW_Pdqp6xCcTbFl-yf9UnYNzdy2NMUbKRtUsLYsb_DDg%26s%3du7v8ryHO7pIa2CI9bFGgK1WQZp2h-2HViRCBiQIBugE%26e%3d&c=E,1,F3sTOSCSiwqT6FIntWnhsSjMXkCVdz3T9a6Nitu1yUk0RpSP3JDThqpv7a2xmSfUB2JmdPwcfloxqbFfHPNwGSoKxPBFF0UA81x-XdO47mbGrwbe2FE_&typo=1> dispute (http://kellywarnerlaw.com/udrp-law-ruling-overturned/<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttp-3A__kellywarnerlaw.com_udrp-2Dlaw-2Druling-2Doverturned_%26d%3dDwMGaQ%26c%3dWO-RGvefibhHBZq3fL85hQ%26r%3dE-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0%26m%3dW_Pdqp6xCcTbFl-yf9UnYNzdy2NMUbKRtUsLYsb_DDg%26s%3d9ZMM_U-AL4F_p5KIXlWAsjtdqv9fNiDOZDj3xdrHivg%26e%3d&c=E,1,8b5Jobp3R08bXgqn7Cqvv-Wo9_V3iR5bRRqOWbc_WcZg5QYMx8bFnK71mdaH8Kwf8w3yVcMZTCYkvdGaidse00-uJDqpcLkHXPHrd567b4GGhiCKi-g,&typo=1>).



The IGO/INGO WG just spent years wrestling with the issue of whether a variant of the UDRP could be devised specifically for IGOs that would indeed be the "final word".  The strongly held view of many participants in that WG was that access to the courts for a final determination of any issues in dispute was a fundamental right, and could not be conceded.



I support the effort to ensure that a respondent, wherever they may be in the world, has access to judicial review of a URS decision.



Regards,



Nat Cohen







On Thu, Oct 11, 2018 at 12:02 AM George Kirikos <icann at leap.com<mailto:icann at leap.com>> wrote:

Hi Claudio,

David Maher gave a history in the context of the UDRP, when discussing
this various issue of access to the courts, see:

http://www.circleid.com/posts/20180103_the_udrp_and_judicial_review/<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttp-3A__www.circleid.com_posts_20180103-5Fthe-5Fudrp-5Fand-5Fjudicial-5Freview_%26d%3dDwMGaQ%26c%3dWO-RGvefibhHBZq3fL85hQ%26r%3dE-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0%26m%3dW_Pdqp6xCcTbFl-yf9UnYNzdy2NMUbKRtUsLYsb_DDg%26s%3dEVq1ts2B1k-7avaTP-uhRZUHXusXwxXoHtIY4wTqx8g%26e%3d&c=E,1,rp4SjAK5DtwVFVGfxls9mS1vnjR_Zx5tNOVoElCaE6-mKS7JOOODHTyVNJpbA-k1wyAL3acQH09_wwGJd0p8i4-nhVC_4KWb-GQM3-hqMxG2eVCuuBA,&typo=1>

which goes back to the very early WIPO Recommendations:

""140. It is recommended that any dispute-resolution system, which is
alternative to litigation and to which domain name applicants are
required to submit, should not deny the parties to the dispute access
to court litigation."

One can also look to section 4(k) of the UDRP policy, and sections
3(b)(xii) and 18 of the UDRP Rules to see that UDRP was never intended
to be the final word.

https://www.icann.org/en/help/dndr/udrp/policy<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttps-3A__www.icann.org_en_help_dndr_udrp_policy%26d%3dDwMGaQ%26c%3dWO-RGvefibhHBZq3fL85hQ%26r%3dE-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0%26m%3dW_Pdqp6xCcTbFl-yf9UnYNzdy2NMUbKRtUsLYsb_DDg%26s%3duKuIdss5k9MvarqJVkAa8oDptDTbsZ8rTQlLnHn9Jpk%26e%3d&c=E,1,Y8hu78OqqgK-4PclB8NIH8qou6w0I7m6QMncfjDZ6tUESh6FHPJsKNrfIpsRqCbzuAUJgiIrAQLIld6hMNKYbAc-PJyhoKSlkJJi0YR3QAjCBAwElQI3aoI,&typo=1>
https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttps-3A__www.icann.org_resources_pages_udrp-2Drules-2D2015-2D03-2D11-2Den%26d%3dDwMGaQ%26c%3dWO-RGvefibhHBZq3fL85hQ%26r%3dE-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0%26m%3dW_Pdqp6xCcTbFl-yf9UnYNzdy2NMUbKRtUsLYsb_DDg%26s%3dhZ8X2T8vlWDecCK21-FoZM3aTw_-Yc3yyKKWVHt8hu4%26e%3d&c=E,1,nUXo25_LhDf6UOBaTuaExE7KnXCEX2Fp2MNgTvXZQKipJ3kYQkA98Tts3B5Eg3Wv6R6xk3gWVPpt1I7jKE3eQILg5-2KhdVAGzq8Y56Nv26fuw-mORzLt2rL&typo=1>

For the history of the URS, you can go back to the reports that
preceded its adoption, such as the STI:

https://gnso.icann.org/sites/default/files/filefield_8000/sti-wt-recommendations-11dec09-en.pdf<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttps-3A__gnso.icann.org_sites_default_files_filefield-5F8000_sti-2Dwt-2Drecommendations-2D11dec09-2Den.pdf%26d%3dDwMGaQ%26c%3dWO-RGvefibhHBZq3fL85hQ%26r%3dE-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0%26m%3dW_Pdqp6xCcTbFl-yf9UnYNzdy2NMUbKRtUsLYsb_DDg%26s%3dZ3iU2rmYWnRyw8RmFbCE9_BQWeeUjRKKkD7a-6f7ly8%26e%3d&c=E,1,iKYOSGbpTc7AWo3YjDDqdT5qzAtTHjGe0hTB7TZQMaWWVr_sq4XKy3H-Ei4FgncjarpodErETjwpOymwGgqilNNjeh1Qlh2rw_KHKQYQ3WuNq7QYffcrCw,,&typo=1>

Section 8.3 at the bottom of page 21 (and continuing to page 22),
unanimous consensus, stated:

"A URS decision should not preclude any other remedies available to
the appellant, such as UDRP (if appellant is the complainant), or
other remedies as may be available in a court of competent
jurisdiction. A finding in URS for or against a party should not
prejudice the party in UDRP."

or look to the text of the URS Policy (e.g. section 13) and section
3(b)(ix) of the URS Rules to see that the URS was never intended to be
the final word.

http://newgtlds.icann.org/en/applicants/urs/procedure-01mar13-en.pdf<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttp-3A__newgtlds.icann.org_en_applicants_urs_procedure-2D01mar13-2Den.pdf%26d%3dDwMGaQ%26c%3dWO-RGvefibhHBZq3fL85hQ%26r%3dE-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0%26m%3dW_Pdqp6xCcTbFl-yf9UnYNzdy2NMUbKRtUsLYsb_DDg%26s%3dNm_7KzrdDmIH5PWBH5QvM3GmyPwaaK2w7xUZNCurpSU%26e%3d&c=E,1,zHVuDfSsOkb4wL5qP53LSU2ui6qNrmT8yejL63K-u-HovAWQh1n2Bzu7tCufu4Q8GW4UDPdH1eQSRkWBhV6MGh-gSFAf6w3Lxg4x1utv4Q,,&typo=1>
http://newgtlds.icann.org/en/applicants/urs/rules-28jun13-en.pdf<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttp-3A__newgtlds.icann.org_en_applicants_urs_rules-2D28jun13-2Den.pdf%26d%3dDwMGaQ%26c%3dWO-RGvefibhHBZq3fL85hQ%26r%3dE-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0%26m%3dW_Pdqp6xCcTbFl-yf9UnYNzdy2NMUbKRtUsLYsb_DDg%26s%3dTQA3lx1W9KqF6rFS7iR4vo2Xt6kCb-cRXWEI4Rp3Qqw%26e%3d&c=E,1,0UooF8PexaML6hjiaRlIt6FQ9sSz5P11Qxh5l2rQUooKce5lbiUbQy-UBTuYkbl6fBrRc8EfTO44PKqoBpHLogLSFoSX7JEIz1VLsxxswMUm&typo=1>

I hope that answers your question sufficiently. Some of the people who
were on the teams that developed the UDRP and URS are members of this
PDP, so you can simply ask them (or consult the archived documents on
ICANN's website that led to the policies).

If you're asserting that the UDRP/URS *were* intended to be the "final
word", that's a very bold claim to make (unlike mine, which was
non-controversial), and I think the onus is on you to back that claim.
And, even if that claim could be backed (which I doubt), I think that
would be a scary thought, and reinforce the need to properly review
the policies to eliminate such errors in policymaking.

In other words, I've been trying to correct what I (and many others)
feel are *unintended consequences* of poor drafting of the UDRP/URS.
If you're asserting that those are the *intended outcomes* (i.e.
inability to have one's day in court, to challenge the outcome of a
UDRP/URS), that's a bold claim.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttp-3A__www.leap.com_%26d%3dDwMGaQ%26c%3dWO-RGvefibhHBZq3fL85hQ%26r%3dE-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0%26m%3dW_Pdqp6xCcTbFl-yf9UnYNzdy2NMUbKRtUsLYsb_DDg%26s%3dy3PDMq2GyJAJJqlvyGv9zd0AX9CcJ9wOBZAp4hIUJdQ%26e%3d&c=E,1,Fti54hDGcTwEVLKKsQQ_vYlTpJXxQe3LuOlkSxX9OWXRlvnGkNnC3NR6vQZJOr5rvT9t4bOiOrAsQRe3yYgPfXMVX5RvtRIgqxLK86XNXEk19_rWtFDuBHCY&typo=1>





On Wed, Oct 10, 2018 at 9:47 PM, claudio di gangi <ipcdigangi at gmail.com<mailto:ipcdigangi at gmail.com>> wrote:
> George,
>
> I’m getting the sense that we are going to start talking past each other
> soon, if not already.
>
> Since this concerns your proposal, my recommendation is that you supply
> reference materials, e.g. a link, a citation, quoted language, etc. to the
> following clause:
>
> “That means the URS violating the principles upon which these policies were
> adopted, namely that they *wouldn't* be the final word, that both side would
> have recourse to the courts to challenge the outcome, if they disagreed with
> it.”
>
> This language does not appear in the UDRP or URS policy, rules and/or
> implementation documents.
>
> Once we have this language to review, we can examine and analyze the
> material to see if we can obtain a shared understanding of the relevant
> issues and facts to help steer the discussion in a positive manner.
>
> Thank you.
>
> Best regards,
> Claudio
>
>
> On Wednesday, October 10, 2018, George Kirikos <icann at leap.com<mailto:icann at leap.com>> wrote:
>>
>> Hi Kristine,
>>
>> On Wed, Oct 10, 2018 at 7:11 PM, Dorrain, Kristine <dorraink at amazon.com<mailto:dorraink at amazon.com>>
>> wrote:
>> > I am still trying to understand what specific language you could insert
>> > into the URS (or UDRP) that would obligate a UK national court to decide to
>> > take jurisdiction or accept a cause of action.  Those are issues of
>> > sovereignty for individual countries.  The URS has no authority over
>> > national courts.  They alone decide what they will and won't hear.
>>
>> Thanks for your post. In reviewing the call again this evening, the
>> proposals seem to be misunderstood, I'm hopeful I can provider greater
>> clarity in this email.
>>
>> When you said " The URS has no authority over national courts.  They
>> alone decide what they will and won't hear." I agree! that's the
>> proper identification of the underlying *problem*. i.e. in some
>> jurisdictions, they won't permit a registrant (who loses a URS/UDRP
>> and wants to challenge the outcome in court) to bring a case in the
>> court. That means the URS outcome would be the "final word", violating
>> the principles upon which these policies were adopted, namely that
>> they *wouldn't* be the final word, that both side would have recourse
>> to the courts to challenge the outcome, if they disagreed with it.
>>
>> So, I agree with you 100%, we *cannot* tell the courts what to do. We
>> cannot force them to permit a registrant to have a cause of action.
>> But, what we can do is make the URS (and UDRP later) policy not get
>> into that situation in the first place. We know the underlying problem
>> is caused by the role reversal (i.e. the registrant, as things stands
>> now, would be forced to become the complainant in court, if they want
>> to challenge an adverse URS/UDRP; but the natural role of the
>> registrant, had these procedures never existed, is to be the
>> *defendant*, and have the TM holder be the plaintiff in court.
>>
>> How do we accomplish this? Proposal #18 does this by allowing the
>> losing registrant to simply file a "Notice of Objection" after losing
>> and paying the fee (and accepting that if a court action happens and
>> they don't do any better, they'll be on the hook for additional legal
>> costs at the discretion of the courts) -- just like in that British
>> Columbia Civil Resolution Tribunal system. So, under Proposal #18, the
>> registrant is *not* the complainant in court anymore. It's the TM
>> holder who would file a TM infringement case/cybersquatting claim in
>> court. The registrant makes a defense to that cybersquatting claim,
>> and the case proceeds in court de novo without the interference of the
>> prior URS/UDRP outcome. This is what we **wanted** all along, the
>> underlying dispute in the courts, with a fresh slate, and both sides
>> in their "natural" roles (TM holder as complainant, registrant as
>> defendant).
>>
>> Proposal #19 also fixes the role reversal problem, albeit in a more
>> circuitous and inelegant manner. In proposal #19, the losing
>> registrant who wants to challenge the outcome of the URS/UDRP
>> initially files a court case, like today. If there's a cause of
>> action, it proceeds as normal, just like today. But, if this "lack of
>> cause of action" issue is encountered (e.g in the UK), denying the
>> registrant a de novo hearing of the dispute on the merits but instead
>> dismissing the action on a "technicality", then that would trigger
>> something "new", namely that the URS/UDRP outcome would be completely
>> set aside (vitiated). i.e. it's saying that the right to access the
>> courts is so important that we're going to fix the problem (lack of
>> court access in this scenario) by undoing the URS/UDRP, and letting
>> the parties go back to court with the TM holder as the plaintiff in
>> court (assuming they still want to pursue the matter), and with the
>> domain registrant as the defendant.
>>
>> Proposal #20 doesn't address the problem in the same manner, but
>> instead says "Registrant can file a court case in the USA, where we
>> know a cause of action exists.
>>
>> So, let me make it clear, since the proposals seem to be misunderstood
>> --- I am not proposing any language at all to obligate any courts to
>> decide to take jurisdiction of a case, or accept a cause of action.
>> That's entirely up to them.
>>
>> But, we do know that trademark holders will have a cause of action as
>> plaintiff in the courts (for cybersquatting, TM infringement, etc.),
>> and courts will always allow registrants to put up a defense!
>>
>> Now, if someone wants to raise the issue of "Well, what if courts
>> don't allow a Trademark holder to bring an action as plaintiff?" My
>> response would be "Too bad for you!" The URS/UDRP wasn't designed to
>> give TM holders *greater* rights or superior outcomes than those that
>> exist in the courts. If it turns out that TM holders don't have a
>> cause of action in a court for their dispute, then that's the PROPER
>> OUTCOME.
>>
>> If it turns out that registrants don't have a cause of action, because
>> of this role reversal created by the URS/UDRP, then the solution is to
>> eliminate that role reversal in the current policies themselves (which
>> proposals #18 and #19 accomplish, albeit in different manners; #18 is
>> more elegant, and matches how it's actually done by an existing
>> tribunal in BC).
>>
>> > If you allow a losing respondent (who has lost a case because the use of
>> > the domain name was so transparently infringing to a jurist that they found
>> > against the respondent in their absence or despite their participation) to
>> > strip a complainant of their URS win in order to force them to court, it has
>> > the effect of nullifying the URS...why bother?  I realize that you have a
>> > proposal in to remove the URS entirely, so perhaps this is just another way
>> > to achieve the same goal, but I'm merely trying to address practicality
>> > here.
>>
>> Frankly, I'm shocked by the above statement. This is suggesting that
>> the URS/UDRP outcome is always correct, and should never be appealed.
>> But, we know that's not the case. We've seen reversals in the courts,
>> the various cases brought up on this mailing list repeatedly (the ones
>> that WIPO won't post to their website, for example!). Why bother to
>> have courts of appeal? Why bother to have a Supreme Court? It's
>> because lower courts can get it wrong! In the URS/UDRP especially,
>> there's no cross examination, no discovery, nor all the other due
>> process protections of a court. The URS/UDRP can and do get it wrong
>> from time to time. Even judges make mistakes.
>>
>> This isn't attempting to deprive the TM holder of anything. The
>> expectation of all sides has been that the matter can go to the
>> courts. If it requires, procedurally, that the only way to get to that
>> proper state is to undo the URS/UDRP outcome, then that's how it has
>> to be done. The domain name registrant wants the matter decided by a
>> court. They have that right (unless the TM side wants to eliminate
>> that right --- be transparent about that if that's the case; i.e. not
>> fixing the problem achieves that outcome). If the domain name
>> registrant can't have their day in court as plaintiff, then make them
>> be the defendant instead, and force the TM holder to return to their
>> natural role as Plaintiff. The domain name owner isn't trying to "pull
>> a fast one" --- under Proposal #18, the domain name registrant would
>> make a good faith payment to file that Notice of Objection, and also
>> suffer cost consequences if they do no better in the courts. Under
>> proposal #19, the domain name registrant *already* went to court, but
>> the case got tossed on a technicality, and wasn't able to be heard on
>> the merits.
>>
>> So, I'm not trying to "remove the URS" via these two proposals (#18
>> and #19). I'm instead trying to ensure that the URS/UDRP are not the
>> final word, and that there's real recourse (on the merits, de novo) to
>> the courts. If either side *insists* that the courts be the final
>> arbiter, then that is a *right*. They shouldn't lose that right to
>> have the court be the final arbiter, just because the URS/UDRP weren't
>> drafted properly, or made assumptions that are incorrect. Losing that
>> right to court access means that ICANN has implicitly created NEW LAW,
>> eliminating rights for registrants that they had prior to the adoption
>> of the policies, namely the right to have their disputes decided in
>> court.
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttp-3A__www.leap.com_%26d%3dDwMGaQ%26c%3dWO-RGvefibhHBZq3fL85hQ%26r%3dE-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0%26m%3dW_Pdqp6xCcTbFl-yf9UnYNzdy2NMUbKRtUsLYsb_DDg%26s%3dy3PDMq2GyJAJJqlvyGv9zd0AX9CcJ9wOBZAp4hIUJdQ%26e%3d&c=E,1,t__RSDknlncrsMrw1RGb5jSVqglkNGIPKoFCtKfrEog7-NB3pG0HEahyJBFM4r9pQR-opaUf6YDgUcrv89KW_u9Qc98hac2un1a8FED6ue8,&typo=1>
>> _______________________________________________
>> gnso-rpm-wg mailing list
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>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttps-3A__mm.icann.org_mailman_listinfo_gnso-2Drpm-2Dwg%26d%3dDwMGaQ%26c%3dWO-RGvefibhHBZq3fL85hQ%26r%3dE-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0%26m%3dW_Pdqp6xCcTbFl-yf9UnYNzdy2NMUbKRtUsLYsb_DDg%26s%3dX03FSCaoprFnXUEOHOjqCTA0GUnkTOm5yL8HjX9bovY%26e%3d&c=E,1,kSJMGAk8mIPIww9YuM1_KBP4l0RCwWDoapHctpsGA_NU20I65M-o_YgWo-m22HUHS5mipO_hKi1qe-1GreI9J-t2V_ey9IPE2iIhcsMulgsCfyPImRYDI6o,&typo=1>
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