RE: [ga] court curbs icann

["Roeland Meyer \(E-mail\)" <rmeyer@mhsc.com>]

> From: Harald Tveit Alvestrand: Friday, May 19, 2000 12:08 AM
> At 12:39 18.05.2000 -0700, Roeland Meyer \(E-mail\) wrote:
> >Aside from the obvious? I'm not sure, at this point, how this
> >effects the UDRP.

One problem that I have with this is that we are doing this
analysis from a condensed report. Yes, I know that the actual
source dox may be rather obtuse. However, this is an
interpretation, of an interpretation, with no source dox
available (he whom depends on crystal balls too much, often eats
glass). Also, try reading the Reader's Digest version of Hamlet
sometime, there's a lot missing.

> It would seem to reaffirm the UDRP's view of itself in the
> scheme of things.
> See in particular section 4 K of the UDRP at
> http://www.icann.org/udrp/udrp-policy-24oct99.htm, which
> clearly states
> that a court of law may overrule an administrative panel
decision.

<excerpt
http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagena
me=law/View&c=Article&cid=ZZZI5DBFD8C&live=true&cst=1&pc=0&pa=0&s
=News&ExpIgnore=true&showsummary=0>

Additionally, Weber-Stephen went to the Internet Corp. for
Assigned Names and Numbers (ICANN), the nonprofit, private-sector
corporation set up to oversee Web-name assignments and resolve
domain-name disputes. Under the organization's Uniform Domain
Name Dispute Resolution Policy, Weber-Stephen asked ICANN to
cancel Armitage's domain names or to transfer them to Weber. In
response, Armitage asked the federal court to stay ICANN's
administrative proceedings and declare them nonbinding.

In a ruling on May 3, U.S. District Judge Marvin E. Aspen
determined that the court is not bound by proceedings of an ICANN
panel. But he indicated uncertainty about just how much deference
the administrative procedures should be given. He stayed the
federal trademark case pending the outcome of the ICANN decision
and said that "at this time we declined to determine the precise
standard by which we would refuse the panel's decision and what
degree of deference (if any) we would give that decision. Neither
the ICANN Policy nor its governing rules dictate to the court
what weight should be given to a panel's decision."

The ruling is significant because of the volume of
dispute-resolution proceedings now before the administrative
organization. According to the ICANN Web site, on May 9 there
were 518 unresolved cases.

</excerpt>

> As I read the decision as reported, there are 2 significant
> parts that actually *increase* the status of the UDRP:
>
> - He stayed the federal case. This indicates that he regards
> the outcome of the UDRP proceeding as worthy of hearing before
proceeding.

Equally likely, the Judge was buying time to study the matter
more deeply. He clearly indicated the UDRP to be non-binding.
This is well and good. I further note that when a Judge declines
to define something, it is either because they don't yet have an
answer that they are willing to live with, or they think their
answer would be prejudicial to something where they dearly would
like to see an objective result, (one that is not effected by
their action). In this case, he is clearly trying to remain as
neutral as possible, in order to see what the UDRP does.

> - He *denied* the motion by Armitrage to stay the ICANN
proceeding.
>    (Given that it was a WIPO hearing, based in Switzerland,
> he might have
>    realized that this wouldn't be trivial to implement.)

IMHO, the jurisdictional issue appeared irrelevent. The Judge had
the power to neutralize the UDRP decision, as all parties are on
US soil and this was in Federal court. Appropriate court orders
could have either superceded, or supported, anything the UDRP
decided. He could have, trivially, ignored the UDRP altogether by
awarding a TRO against NSI changing anything until he is done
with it. That implementation mechanism is more than obvious and
would have made the UDRP irrelevent, instantly. You are right, it
is significant that he didn't do so. I'm just not as sure as you,
as to which way to read it.

It is also worthy of note that Armitage didn't think of filing
the TRO, rather than asking the Judge to stay the UDRP proceding.
Without access to the source dox, it's difficult to determine
exactly which way it went. If some of the lawyers on the list
want to comment on this point, please do so.

Effectively, the two cancel each other, with the result being
neutral.

> Reading the UDRP proceeding decision is also interesting.
> To my mind, this is *exactly* how the UDRP should work:
>
> "If Complainant desires to obtain relief based upon some
> allegations that
> Respondent overstepped or overstated the bounds of its
> arrangement with
> Complainant, or that no such arrangement exists, that
> argument is better
> addressed to a court, which is equipped to resolve such
> complicated factual
> issues."
>
> In other words: "This matter is not a clear cut case. The
> UDRP does not apply. Go to court."
> And it makes a point I made during the WIPO discussions: That
> it *must* be
> possible to bring a case before the UDRP panel to find out
> whether it is a
> case where the UDRP can be applied or not. Otherwise we need
> a meta-panel
> to decide whether a case can go to the panel, which may then
> have doubts
> cast upon its jurisdictions, which then need to be resolved
by.....

The problem is that we have been seeing some extremely flakey
UDRP decisions. Ergo, I don't know where your point helps that
here.

> I think this case indicates that the process is working, just
> about the way
> I thought we wanted it to work.
> Not too bad.

Not too good either. In balance, it came out neutral (with the
caveates I started this note off with). I definitely read a
wait-and-see here. That they are willing to watch is significant.
What they do with what they see, will also be significant.

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