[ga] Re: [ncdnhc-discuss] RE: Touton on CNN v CNNews.com

[Jeff Williams <jwkckid1@ix.netcom.com>]

Eric and all assembly members of other interested parties,

  Eric, thank you for this brief but very good analysis of Mr. Toutons
unfortunate error in judgment and display of lack of good legal
ability.  For some time now I amongst a growing number of
other members of the legal community have noticed that
Mr. Toutons legal prowess is lacking significantly in a number
of instances and in dealing with contractual as well as statute
law.  This has also been increasingly noticed by Mr Simms
as well.  Much of the high regard that come from some
circles for Mr. Touton are more of a relationship based
poor assumption and have therefore lead to some increasingly
significant political problems for and about ICANN...

Eric C. Grimm wrote:

> Mr. Touton:
>
> I have read your analysis concerning the CNnews.com case, which you sent to
> Jamie Love (reprinted below).
>
> You are wrong in several important respects, but I will focus on only two of
> them.
>
> First of all, registrar certificates DO NOT transfer "complete dominion and
> control" over anything.  This is so for both functional (technical) and
> legal reasons.
>
> Functionally, these declarations are nothing more than two pieces of paper
> and a staple.  They have to functional or technical effect on the DNS in any
> way whatsoever.  It is, of course, possible (as I have tried to do in at
> least one case in the Central District of California) to transfer "complete
> dominion and control" over an address to a particular court by causing the
> court itself to become the named Registrant and Administrative Contact of
> the Domain name, with the court's own Nameservers assigned as the
> Nameservers of the address.  Such a court does, in fact, actually exercise
> "complete dominion and control" over a domain name.  In no other way is it
> really possible, as a technical matter, actually to confer such a parcel of
> powers (or should we call it, more accurately, a "bundle of rights"?) on any
> court.
>
> I note this was NOT done in the CNnews.com case.  And the court itself was
> and remains technically powerless to exercise actual "complete dominion or
> control" over this address or any other address.
>
> Legally, your interpretation of the effect of "registrar certificates" is
> directly contrary to the UNIFORM holdings of ALL of the U.S. District Courts
> (of which I am aware) to address the issue of whether such a document
> actually confers "complete dominion and control."  They all hold such a
> document does not.  Each of the United States courts addressing the question
> of whether Mr. Sbarbaro's fictitious invention of a "registrar certificate"
> actually HAS the effect that you say it purports to have -- without any
> exceptions -- has clearly decided that the "registrar certificate" does not
> confer complete dominion and control upon them no matter what it may purport
> to do.  These decisions are: (1) the FleetBoston decision out of the
> District of Massachusetts, (2) the Barbie-Club decision out of the Southern
> District of New York, (3) the Ford v. Great Domains decision out of the
> Eastern District of Michigan, and (4) the recent Indian Country Today
> decision out of the Northern District of New York.
>
> Just because "Louis Touton says so" does not necessarily mean that your
> position is consistent with that of the courts.  And in fact, your personal
> opinion is not shared by Judges Woodlock, Cote and Cleland (among others).
> I would be interested to know whether you actually researched this specific
> issue before issuing orders to a Registrar based outside the United States
> in the Peoples' Republic of China.
>
> Second, your interpretation of Judge Ellis's Order is obviously wrong.
> Judge Ellis himself says so.  Pease see the attached Order.
>
> Thank you for your careful attention to the CNnews.com matter as a whole, as
> well as for your continued careful attention to the above points.
>
> Very truly yours,
>
> Eric C. Grimm
> CyberBrief, PLC
> 320 South Main Street
> Second Floor
> Ann Arbor, Michigan
> 734.332.4900
> fax 734.332.4901
>
> ----- Original Message -----
> From: "Louis Touton" <touton@icann.org>
> To: <james.love@cptech.org>
> Sent: Wednesday, April 17, 2002 8:09 PM
> Subject: CNN v. cnnews.com Case
>
> Jamie,
>
> Here is the summary you requested regarding the CNN v. cnnews.com case:
>
> A central feature of the Uniform Dispute Resolution Policy is that
> registrars will remain neutral concerning trademark-based disputes over
> domain names.  (This was a major change from the prior Network Solutions
> dispute policy.)  Instead, these disputes are to be resolved by courts
> or, in cases of abusive registrations, administrative panels (see
> paragraph 4, UDRP).
>
> To promote registrar neutrality, the policy contemplates that registrars
> need not be brought in as parties to the disputes.  (In fact, paragraph
> 6 of the policy specifically states that domain-name holders will not
> name their registrars as parties.)  In this vein, paragraph 3 of the
> UDRP requires that registrars implement court orders and administrative-
> panel decisions in trademark/domain name disputes even though the
> registrars are not parties to the proceedings:
>
>    3.  Cancellations, Transfers, and Changes. We will cancel, transfer
>    or otherwise make changes to domain name registrations under the
>    following circumstances:
>
>       * * *
>
>       b. our receipt of an order from a court or arbitral tribunal, in
>       each case of competent jurisdiction, requiring such action; and/or
>
>       c. our receipt of a decision of an Administrative Panel requiring
>       such action in any administrative proceeding to which you were a
>       party and which was conducted under this Policy or a later version
>       of this Policy adopted by ICANN.
>
> In the CNN v. cnnews.com case, the registrar for the domain name,
> Eastern Communications (also known as Eastcom), filed a "Registrar
> Certificate" with the United States District Court for the Eastern
> District of Virginia on 14 March 2001 stating:
>
>    Through the deposit of this Registrar Certificate with the Registry
>    of the Court, EASTCOM hereby tenders to the Court complete control
>    and authority over the registration for the CNNEWS.COM domain name
>    registration record.
>
> This type of registrar certificate provides the court with "in rem"
> jurisdiction over the domain name, but is not intended to consent to
> the court's exercising "in personam" jurisdiction over the registrar.
>
> After various hearings (attorneys for both disputing parties were
> present) the court issued an order on 11 January 2002 transferring
> the domain name:
>
>    It is now hereby ORDERED that the domain name CNNEWS.COM is
>    transferred to Plaintiff Cable News Network LP, LLLP.
>
> This form (particularly the phrase "is transferred") of order indicates
> that the court is exercising its in rem jurisdiction to transfer an
> item (here, the domain name) that has been placed within the court's
> control.
>
> Because the registrar had expressly placed the domain name cnnews.com
> under the "complete control and authority" of the court, and that court
> had entered an order of transfer, paragraph 3(b) of the UDRP (see above)
> provides that the regisrar will comply with that order.
>
> The domain-name holder has appealed the Virginia district court order to
> the United States Court of Appeals for the Fourth Circuit.  Under
> federal court procedures in the United States, the filing of an appeal
> does not stop the effectiveness of a district court order.
>
> Registrars are obligated by their registrar accreditation agreements
> with ICANN to abide by the UDRP (and other consensus policies as well).
> Section 3.8 of the current version of the registrar accreditation
> agreement states:
>
>    3.8 Domain-Name Dispute Resolution. During the Term of this
>    Agreement, Registrar shall have in place a policy and procedures
>    for resolution of disputes concerning Registered Names. Until
>    different policies and procedures are established by ICANN under
>    Section 4, Registrar shall comply with the Uniform Domain Name
>    Dispute Resolution Policy identified on ICANN's website
>    (www.icann.org/general/consensus-policies.htm).
>
> ICANN received a letter from an attorney for CNN enclosing the registrar
> certificate and the court order, reporting difficulties in communicating
> with the registrar.  On 2 April, we forwarded the letter and its
> enclosures to Eastern Communications (the registrar) requesting, "Please
> look into this right away and ensure that Eastern Communications
> promptly fulfills its responsibilities."
>
> In response to an inquiry from a US lawyer representing the
> domain-name holder, on 4 April we advised that attorney that "Absent a
> stay of the effect of this [11 January] order, EastCom is obliged to
> comply with that order under its accreditation agreement with ICANN."
> On 12 April, the domain-name holder obtained a stay from the Virginia
> district court.  On 13 April 2002 we advised the parties (through their
> attorneys) that, because the Virginia court had ordered a stay of its
> 11 January order, the domain name should not be transferred under
> paragraph 3(b) of the UDRP at this time.
>
> Best regards,
>
> Louis Touton
>
> --------------------
> James Love, mailto:james.love@cptech.org, http://www.cptech.org
> voice +1.202.387.8030, mobile +1.202.361.3040, fax +1.202.234.5176
>
> --------------------
> James Love, mailto:james.love@cptech.org, http://www.cptech.org
> voice +1.202.387.8030, mobile +1.202.361.3040, fax +1.202.234.5176
>
>   ------------------------------------------------------------------------
>
>                                            Name: cnnews-4-12ordergrantingstay1.pdf
>    cnnews-4-12ordergrantingstay1.pdf       Type: Portable Document Format (application/pdf)
>                                        Encoding: base64

Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 121k members/stakeholdes strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-244-3801 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208


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