Re: [ga] eresolution realizes fairness doesn't pay under udrp

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

From: "Roeland Meyer" <rmeyer@mhsc.com>

> This is aside from the point that, if it had been a court case, according
to
> ALL of the law, including trademark law, those convictions might not be
> convictions in the first place.

...On the thoroughly unrealistic assumption that UDRP respondents could
adequately defend a court case.

The real result would be more defaults, and thus more complainant wins, if
every one of these things went to court.

Registrars simply do not make an independent determination of whether the
court rendering the decision was a "court of competent jurisdiction" when
they receive a judgment, despite what the domain registration contract says.

People like to use bodacious-tatas.com as an example, but I chuckle because
nobody seems to have looked at the whois on that name, which was ordered
"cancelled" under the UDRP.

Go look.

Now, you want to know what is *really* going on with that name?  In parallel
with their UDRP complaint, the Tata folks also filed a lawsuit - in India.
You will notice that the domain name registrant is in New Jersey, and the
site never had anything to do with India.  However, pursuant to their
mechanical "hold" policy, NSI duly placed the domain name on hold and
maintains it in an inoperable condition pending the outcome of the suit in
India (in which the domain registrant was never served with process, and in
which the domain registrant has not participated).

Do you have any earthly idea how long a lawsuit in India can last?  The
practical answer is "forever".  Cases creep through their courts at a pace
measured in decades.  There is, for most purposes, no practically functional
civil law system in that country.  Go find me a Union Carbide accident victim
in Bhopal who has received a single rupee.  And, there may be people reading
this for whom the accident ocurred before they were born.

So, what I hear being said here is that a system where anyone can render a
domain name permanently non-functional by filing a lawsuit in India is
preferable to a system where there is at least an opportunity to hash out the
dispute in a matter of two or three months.  No system is going to be
perfect, but some of what is said about "leaving it to the courts alone"
flies in the face of reality, if what you want is something approximating any
idea of "fair".

The other flaw with "leaving it to the courts" is this...  In the US, you are
free to ignore a civil lawsuit brought against you in a court which does not
have proper jurisdiction.  After the default, when the plaintiff comes to
enforce the judgment, then you can challenge, in your local court, on the
issue of whether the first court had proper jurisdiction.  However, under the
system that many here seem to prefer, then the winning default plaintiff in
the first court can simply go to the registrar and say, "lookee here, we
won", and the registrar will dutifully transfer the domain name without the
defendant ever having had the opportunity to pursue a collateral challenge as
he would in any ordinary civil suit.  Even some of the "alternative"
registries follow the same type of policy, and it is simply not "fair" to the
defendant who allows a default judgment to issue from a court which did not
have competent jurisdiction.

To make it "fairer", then the registrar has to become the arbiter of whether
jurisdiction was appropriate, which is a ridiculous role for a registrar to
play.  Consequently, that's why registrars never question jurisdiction of the
(usually remote) court issuing the default judgment.  On the other hand, if
the registrar says, "gee, I don't think there was jurisdiction here", then
just *who* do you think is going to get sued at that point?  You want the
registrar to stick their neck out and go to court for what, a ten dollar
contract?  Are you crazy?

A fundamental problem to be solved, and for which I have seen and offer no
solutions, but which is seldom discussed, is "how do you make it fair to
registrants without putting the registrar in a position where the registrar
becomes a target?"  The UDRP, in principle, is closer to an answer to that
question that leaving it to courts which have NO jurisdictional connection to
the domain name or the registrant.  Why people seem to prefer that type of
situation is a profound mystery to me.

John


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