[council] Legal Decision wrt Auctions

Michael D. Palage michael at palage.com
Thu Aug 11 14:48:54 UTC 2005


Thanks for the translation. I would appreciate Nicholas' views on the
native German text as well.

Let me explain my concern as a lawyer. At the Board we have struggled
over the past year with a number of sTLD applications that did not
exactly fit the 2000 sponsor mold - in fact I have heard a number of
comments from the community about the "sponsorship" nature of a number
of applications. Unlike the 2000 proof of concept process where ICANN
Board were able to choose among the applicants, this sTLD round was a
little more limited, i.e. if the applicant met the criteria it was
intended that they would be approved by the Board. Although the Board
does always have the authority to disagree with any of the independent
evaluator's recommendations.

With this back drop, I think it is important to understand that should
ICANN move forward with a potential auction model, they might be limited
in their ability to withdraw/decline/refuse potential bidders once the
auction has started. Having thought about this decision for the past
couple of hours, should ICANN decide to utilize an auction mechanism I
think it would be important to have a pre-screening stage to screen
potential problem applications prior to the start of any auction.

So although initially you may not understand how a car being sold on
eBay related to the auctioning off of gTLDs, I hope this additional
insight provides the thoughts of just this lawyer. Again I welcome the
thoughts and insight of Nicholas.

Best regards,


-----Original Message-----
From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org]
On Behalf Of Thomas Keller
Sent: Thursday, August 11, 2005 10:28 AM
To: Michael D. Palage
Cc: council at gnso.icann.org
Subject: Re: [council] Legal Decision wrt Auctions

the article reports about a ruling of the OLG Oldenburg .a german court,
in respect to a person trying to sell a car at ebay but withdrawing the
offer after several bits had already been placed. The court agreed with
the argumentation of the complainant that due to the offer of the
defendant at ebay and the valid bit of the complainant a contract 
between this to parties had been established. The case was resolved by
ordering the defendant to pay damages of 2.499,50   to the complainant.

Basicly this ruling means that if you start to sell something on ebay
you have to accept the highest offer you get and go with it.

I'm as you all know no lawyer and I hope that I haven't missunderstood
the importance of this ruling but to my limited understanding I would 
not think that this has any relevance for future TLD auctions. But maybe
Niclas should have a look at this as well.



Am 11.08.2005 schrieb Michael D. Palage:
> Hello All:
> I came across the following article today in one of my legal 
> periodicals that I thought might be worth sharing. I believe it may 
> potentially be relevant if ICANN should ever go down the path of 
> auctioning off TLDs. Although the summary of the article from BNA is 
> free, one needs to have a subscription for the translation of the 
> decision into English, however, the German version if FREE.
> Electronic Commerce & Law Report reports that a German court has ruled

> that placing an article for sale on eBay constitutes a binding and 
> irrevocable offer to sell. Even if a seller terminates the auction 
> before the specified time period ends, the binding offer stands. It 
> does not matter if the seller complied with eBay's termination 
> procedures. Article at 
> <http://pubs.bna.com/ip/BNA/eip.nsf/is/a0b1e8v3y6>
> For a free trial to the source of this story, visit
> http://www.bna.com/prodcuts/ip/eplr.htm
> German language decision at
> <http://cogworms.notlong.com/>
> Thomas perhaps you might be able to translate and share any relevant 
> portions of the text with the council.
> Best regards,
> Michael D. Palage



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