Strongly opposed to UDRP/URS changes that would affect due process rights of registrants

[George Kirikos <gkirikos@xxxxxxxxx>]

Submitted by: George Kirikos
Company: Leap of Faith Financial Services Inc.
Website: http://www.leap.com/
Date: March 11, 2014


Thank you for the opportunity to comment on the Preliminary Issue Report on 
Access by IGOs and INGOs to the Curative Rights Protections of the UDRP and URS:

http://www.icann.org/en/news/public-comment/igo-ingo-crp-prelim-10mar14-en.htm

We strongly oppose any changes that would affect the due process rights of 
domain name registrants, in particular their ability to seek recourse in their 
own national courts.

As pointed out in prior comments during the earlier working group, Article 6ter 
is misunderstood:

http://forum.icann.org/lists/comments-igo-ingo-final-20sep13/msg00015.html

John Berryhill wrote an excellent analysis of Article 6ter of the Paris 
Convention, see comment #4 of the CircleID article linked at:

http://www.circleid.com/posts/710118_short_domain_names_igo_udrp/

"It is long past time to put to bed the downright intellectual dishonesty  
involved in citing Article 6ter of the Paris Convention as prohibiting the  
registration of domain names of any kind. FIRST - The treaty is binding on the 
governments which are signatory to the treaty.  The treaty is not binding upon 
ICANN.  The treaty is not binding on any registry. SECOND - The treaty requires 
governments to refuse to register as trademarks or permit use as trademarks, 
the names or initials of IGO's. We are not talking about trademarks, we are 
talking about domain names.  There is nothing - utterly nothing - in this 
treaty that relates to a requirement  binding upon ICANN or a domain name 
registry to refuse to permit the registration of internet domain names of any 
kind. Sorry, if the acronym of my organization is GFY, then I can use GFY as a 
domain name for my organization.  That is a situation that has nothing to do 
with whether I am using GFY
 as a trademark - as I might not even be using the acronym as a trademark. Do 
we require the New York Stock Exchange or the NASDAQ to refuse to issue stock 
ticker symbols which are IGO's?  No, we don't.  Should a public 
corporation be allowed to register its stock ticker symbol as a domain name, 
even if that symbol corresponds to the initials of an IGO?  I cannot for the 
life of me imagine why they should not. This notion concerning Article 6ter is 
sheer stupidity.  For those who know better, it goes well beyond stupidity, and 
straight into the realm of outright dishonesty."

Well said. There are already existing laws in place should the UN want to 
compel the New York Stock Exchange to stop giving out the stock symbol "UN" to 
Unilever", for example:

https://www.google.com/finance?q=UN


A treaty that is only binding on *governments* that are signatories means that 
those governments have standing to assert any special rights in their relevant 
courts. For example, a treaty between Afghanistan and Sri Lanka doesn't affect 
the citizens of the United States or Canada. If Afghanistan and Sri Lanka 
create an IGO with the initials "AA", it doesn't mean that the current 
registrant of AA.com (American Airlines, based in the USA) is affected in any 
way whatsoever!

Let's suppose I open a restaurant in Toronto or New York City, and place a sign 
on it of "UNESCO" or "WIPO." How would those organizations which claim 
"immunity" handle that apparent trademark law situation? Presumably, the law 
*already* handles this situation, and we need not invent new law via ICANN in 
order to handle the comparable situation for domain names. Conceivably, the 
Government of Canada or the Government of the USA would take the matter to its 
relevant courts, rather than the IGO/INGO being the complainant --- that should 
be the *exact* same situation for domain names. Governments (if they're 
required to enforce a treaty) *certainly* are not immune to the courts in their 
own countries!

Furthermore, IGO/INGO organizations *already* waive their claims to immunity on 
a regular basis. Consider the UN.org and WIPO.org domain names, registered to 
the United Nations and WIPO respectively. According to the latest WHOIS:

https://whois.domaintools.com/un.org
https://whois.domaintools.com/wipo.org
these domain names are registered at Network Solutions. The Network Solutions 
service agreement plainly states that:

http://www.networksolutions.com/legal/static-service-agreement.jsp


"21. GOVERNING LAW.a. Except as otherwise set forth in the UDRP or any similar 
ccTLD policy with respect to any dispute over a domain name registration, this 
Agreement, your rights and obligations and all actions contemplated by this 
Agreement shall be governed by the laws of the United States of America and the 
State of Florida, without regard to conflict of laws principles, as if the 
Agreement was a contract wholly entered into and wholly performed within Duval 
County in the State of Florida.
b. Except as otherwise set forth in the UDRP or any similar ccTLD policy with 
respect to any dispute over a domain name registration, any judicial proceeding 
relating to or arising out of this Agreement or the Services shall be 
instituted only in a federal or state court of competent jurisdiction in Duval 
County in the State of Florida, and you consent to the personal jurisdiction of 
such court and waive the right to challenge the jurisdiction of such court on 
grounds of lack of personal jurisdiction or forum non conveniens or to 
otherwise seek a change of venue. You also agree to waive the right to trial by 
jury in any action that takes place relating to or arising out of this 
Agreement or the Services.
c. Notwithstanding the forgoing, for the adjudication of third party disputes 
(i.e., disputes between yourself and another party, not Network Solutions) 
concerning or arising from use of domain names registered hereunder, you 
acknowledge and agree that you shall submit, without prejudice to other 
potentially applicable jurisdictions, to the jurisdiction of the courts (i) of 
the domain name holder's domicile, and (ii) where Register.com's principal 
place of business is located, currently Jacksonville, Florida.
d. The application of the United Nations Convention of Contracts for the 
International Sale of Goods is expressly excluded."

In other words, United Nations and WIPO (and other IGOs/INGOs) *already* agree 
to the jurisdiction of various countries/states through their own domain name 
registrations! Indeed, the RAA requires registrars to ensure that WIPO/UN and 
other IGO registrants submit to courts of competent jurisdiction if someone 
else asserts a claim *against* them.

I do not see IGOs/INGOs asking the RAA or their registrar service agreements be 
amended in order to grant them some claimed/vague immunity from the court 
system of relevant nations. 

In other words, as things stand now, IGOs/INGOs are trying to claim "special 
rights" only when it comes to the UDRP/URS when *they* are the complainant 
(i.e. disputes they wish to initiate).

However, one needs to take a step back, and see whether in fact the same 
arguments they're making apply to **their own** domain name registrations (i.e. 
if they do not agree to the jurisdiction of the Court of Florida, for example, 
in relation to the NSI Services Agreement, then their domain names should be 
cancelled, and they should be refused the ability to register those domain 
names in the first place, let alone assert claims against others that would 
transfer the domain names to them, resulting in a registration for that domain 
name that they would not accept! (i.e. if they won a claim for the domain name 
"EXAMPLE.COM", asking for the domain name to be transferred to them, and the 
registration agreement for EXAMPLE.COM requires them to consent to a 
jurisdiction of a court, it would be absurd if they they were able to institute 
the complaint in the first place, knowing that they would later on not be 
willing to agree to the standard registration
 agreement of a registrant).

To reiterate, someone could file a case against WIPO or the UN in a Florida 
court *today*, and those organizations have *already* consented to that 
jurisdiction. Suppose there was a copyright infringement or other "abuse" on a 
website operated by the UN or WIPO or some other IGOs/INGOs? Is it their 
position that they'd have absolute immunity themselves from *others* trying to 
eliminate their own abusive behaviour? That's absurd. Granting anyone immunity 
from laws creates unaccountable actors, which is dangerous. The scope of that 
protection should be limited to the maximum extent possible.

UDRP and URS were designed as streamlined procedures, and are not 
*replacements* for the courts, which have much stronger due process mechanisms 
for all sides, including the ability to cross-examine witnesses, and have 
"discovery of documents." There are also appeals mechanisms, going as far as 
the supreme courts in the relevant countries. These help to ensure that the 
correct decisions are ultimately arrived at. It would be dangerous to replace 
these strong mechanisms with weaker ones, as they would dilute the protections 
afforded to domain name registrants.

Furthermore, while IGOs and INGOs claim "immunity", this does not mean that the 
*domain names* and registrars/registries themselves have such immunity. In 
other words, an order regarding control of EXAMPLE.com is an order against 
*VeriSign* (i.e. the registry operator) to transfer the domain name to a 
registrant. The courts *certainly* have jurisdiction against VeriSign in 
relevant jurisdictions, or to registrars in their relevant jurisdictions. The 
participation of the IGOs/INGOs is *optional*, since the court case can be made 
against the registrar and/or registry alone, and the registry/registrar do not 
have any immunity.

Lastly, as we've pointed out repeatedly, the actual statistical extent of abuse 
of IGOs/INGOs marks is very small, see for example the discussion at:

http://forum.icann.org/lists/comments-igo-ingo-final-20sep13/msg00017.html


where I documented the number of UDRPs the IOC and Red Cross have *already* 
initiated (and they had no problems initiating those under existing rules). If 
there was a serious issue, I'm sure those IGOs and INGOs have friends in 
national governments or elsewhere who could initiate court cases. To give an 
example, the IOC, via the Canadian Olympic Committee, filed a trademark case in 
the courts of British Columbia against North Face:

http://www.theglobeandmail.com/report-on-business/industry-news/marketing/canadian-olympic-committee-files-trademark-lawsuit-against-north-face/article16711509/


No special laws were required -- the situation was handled under *existing* law.

In conclusion, we strongly oppose the creation of any special rules for IGOs 
and NGOs. They should be able to assert their rights in the exact same way that 
they can today under *existing laws* if someone opened a restaurant in Toronto 
or New York with a sign of "WIPO" or "UNESCO." ICANN should not be in the 
business of creating *new* law for these organizations, or for other 
organizations for that matter, that would deprive domain name registrants of 
their own rights under existing law. ICANN has bigger fish to fry, and should 
not be devoting precious and limited resources to this micro-issue which only 
affects a miniscule portion of the internet community, and where dangerous 
precedents could be created that would undermine the safeguards that exist for 
all domain name registrants.

Sincerely,

George Kirikos
http://www.leap.com/