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

[George Kirikos]

Hi Claudio,

On Sun, Nov 19, 2017 at 8:05 PM, claudio di gangi <ipcdigangi at gmail.com> wrote:
> My concern is that this would allow cybersquatters the means to register
> their domains (based either on false WHOIS or an actual P.O. box) in those
> countries and circumvent these ADR procedures.

First, let's try to keep the language neutral, as I did in my initial
post. We're talking about domain name registrants and trademark
holders, who have a domain dispute.

>From the perspective of a TM holder, the domain name registrant is an
alleged cybersquatter. From the perspective of a domain name
registrant, the TM holder is an alleged reverse domain name hijacker.

>From the perspective of ICANN and the law, the matter is in dispute
and undecided. De novo review of the UDRP decision is being sought, to
have the case decided ***on the merits*** in the national courts. All
past determinations don't matter....that's the essence of "de novo".

If ICANN has caused an interference in the underlying legal rights of
the domain name registrant, because it has "flipped the roles" of the
two parties (which party is the complainant, and which party is the
defendant), as I discussed in the first post of this thread, then it
needs to account for this, and eliminate the issue.

This is not about "circumventing these ADR procedures" as you suggest.
It's about having the case heard in national courts, de novo, on the
merits. If ICANN has created a problem whereby the domain name
registrant can't access that de novo review if it's the one
*initiating* the case in a court of law (i.e. because its claim gets
struck for lack of cause of action), then the roles need to be
"flipped back" to what they would have been in the first place (i.e.
TM holder must initiate the court action, and domain name registrant
acts as defendant).

Sincerely,

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