RE: [gtld-council] string criteria

["Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

Hello Robin,

> 
> If an application for a string is filed and a party believes 
> that string 
> should rightfully belong to them, they can march into court 
> the next day 
> and ask the court for an injunction against the issuance of 
> that string 
> because it infringes their rights.  If the COURT agrees and 
> issues the 
> injunction, the string won't be issued.  It makes no sense for us to 
> create a system that circumvents the legal process over the 
> adjudication 
> of rights.  Its over-stepping.

Just to understand this a bit more.  I can understand that a court in
the USA would have such authority over ICANN with respect to adding a
string to the root.   


(1) Are we creating a system that requires a party affected to use the
USA legal processes

(2) If a court outside of USA, e.g in a small country with laws against
introducing any string into the DNS, does ICANN agree to submit to the
rule of a court in that country?   Ie Effectively no new gTLDs?  

Note (2) can be subject to a variety of gaming, where laws could even be
created in some countries to achieve a business or strategic outcome
related to the introduction of new gTLDs.

My assumption was that we are trying to reach some compromise in between
these scenarios, by ensuring that a process can be used outside of  the
USA, but that the process must be related to enforcing laws that are at
least broadly accepted around the world.  For example, if a name was
related to child pornography I think that any court taking action would
be seen as reasonable, but if the name was related to say dancing and
dancing was not allowed in a country for religious reasons than that law
may not have broad international support.

I note that even within the USA, laws are not consistent.  E.g if I want
to register .gaymarriage - some states may find that illegal and others
may not.

Once we then recognise that courts can be used to resolve disputes, the
next step was seeing if we can use some sort of dispute panel that uses
those same laws to resolve a dispute in a more timely or cheaper fashion
for all parties affected.  That has been the foundation of UDRP from my
understanding.   The courts are always available should the parties
dispute the outcome of UDRP, and a court need not take into account the
UDRP result in its decision.

Note I am an engineer rather than a lawyer - so I am just trying to
understand the scenarios when considered across the planet rather than
just in the USA, or just in California.  By that I mean when ICANN, the
registry, the registrar, the reseller, the registrant, and the
complainant all reside in different countries and are subject to
different laws.

Regards,
Bruce Tonkin