[Gnso-igo-ingo-crp] Two cases where IGOs filed trademark lawsuits in the USA

[George Kirikos]

Hi folks,

On Wed, Mar 11, 2015 at 5:31 PM, Paul at law.es ZIMBRA <paul at law.es> wrote:
> In that case it is the IGO who initiated the
> proceeding to protect a commercially used intangible right.

Indeed, Paul, I think this also relates back to the case that Jay
Chapman brought up in the chat today, saved at:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2015-March/000300.html

about "litigation conduct", and that "the advocates for state immunity
did not intend for a state or an arm of the state to wield its
immunity ‘to achieve unfair tactical advantages’.”

In the absence of the UDRP, a complainant would be exposed to the
jurisdiction of the courts (regardless of whether they're an IGO or
not. The crafters of the UDRP recognized this, and ensured that no
tactical advantage was gained by filing the UDRP -- there'd still be
some court's jurisdiction that the complainant (initiator of the UDRP)
would be subject to (in the event of an appeal, etc.).

That jurisdiction (and ability to appeal to national courts) is a
critical element to ensure that rulings of the UDRP
providers/panelists are consistent with relevant national laws.
Otherwise, they could ignore legal precedents in the national courts
with impunity. The UDRP rules mention "applicable law" in multiple
places, so panelists shouldn't ignore it. But, in the absence of any
appeal mechanism to those national courts, one could foresee an
unchecked and long-term deviation by the UDRP providers and panelists
from those applicable national laws.

Case in point, the AustinPain.com court judgment:

http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.uscourts.cod.147273.23.0.pdf

which was in relation to the UDRP at NAF:

http://domains.adrforum.com/domains/decisions/1536356.htm

acts as a check against the *unanimous* 3-person panel who ordered the
transfer (in the lawsuit, the UDRP decision was set aside, the domain
name registrant kept the domain, and was awarded $25,000).

BTW, I actually sent *multiple* emails to WIPO, to have the court
decision in the AustinPain.com matter posted to their list of court
cases at:

http://www.wipo.int/amc/en/domains/challenged/

but guess what --- WIPO hasn't posted it! That should tell you something...

Sincerely,

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