[ga-udrp] FW: Non-member submission from ["Rothnie, Warwick" <WarwickA.Rothnie@msj.com.au>]

["Rothnie, Warwick" <Warwick.Rothnie@msj.com.au>]

Mallesons Stephen Jaques
Confidential communication

Erik Dierker said:
>
> > > > I for one like existing laws
> > > >and would like to see them enforced and if an UDRP did this I
would
> be
> > > all for
> > > >it, otherwise it looks like a mechanism for circumvention of
> Sovereign
> > > and
> > > >legitmate laws.
> > >
> > > Since the UDRP expressly contemplates parties pursuing their
rights
> on
> > > the courts, however, courts will not consider that the sovereignty
> of
> > > the laws has been circumvented.  That is the point of allowing
> parties
> > > to resort to the courts.  Many arbitration agreements, which are
> upheld
> > > by the courts, go even further than the UDRP and preclude court
> action
> > > over factual findings.
> > >
> > > Warwick A Rothnie
> > > Partner
> > > Mallesons Stephen Jaques Melbourne
> > > Direct line (61 3) 9643 4254
> > > Fax (61 3) 9643 5999
> > >
> >
>
> >I am sorry to have confused you but I think we are talking apples and
> oranges
> >here.  If I sign a valid arbitration agreement with you and it states
> that the
> >exixting Trademark Law will govern on any issue of my right to a name
> as opposed
> >to someone elses, and we arbitrate and the arbitrators missapply that
> existing
> >Trademark Law on a consistent and reliable manner to the benefit of
one
> interest
> >group that is in violation of the sovereign laws of the State.  Add
to
> that
> >Monopoly, add to that adhesion contracts add to that Violations of
the
> MOU with
> >the DoC.
>
> >So they have done an end run and circumvented the laws. Notice I used
> the term
> >circumvention and not violation before. But, add all this to ICANN
now
> getting
> >into the business of telling countries they have to follow ICANNs
UDRP
> and you
> >have a flat out violation of law as established by treaty.
>
But surely that is just like any arbitrator making a mistake (assuming
there be one) and the aggrieved party getting an appropriate court to
review and, if necessary, rectify.  The UDRP provides that safety valve
in spades and in the USA (home of plaintiffs' lawyers and contingency
fees), you could hardly claim that meritorious registrants are being
shut out of the legal system.

Warwick A Rothnie
Partner
Mallesons Stephen Jaques Melbourne
Direct line (61 3) 9643 4254
Fax (61 3) 9643 5999

--
This message was passed to you via the ga-udrp@dnso.org list.
Send mail to majordomo@dnso.org to unsubscribe
("unsubscribe ga-udrp" in the body of the message).
Archives at http://www.dnso.org/archives.html