[wg-b] FW: [ga] court curbs icann

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

> -----Original Message-----
> From: owner-ga@dnso.org [mailto:owner-ga@dnso.org]On Behalf Of
Roeland
> Meyer (E-mail)
> Sent: Friday, May 19, 2000 1:14 AM
> To: 'Harald Tveit Alvestrand'; 'Kent Crispin'; ga@dnso.org
> Subject: RE: [ga] court curbs icann
>
>
> > 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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