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Username: LegalEagle
Date/Time: Sun, January 27, 2002 at 3:32 AM GMT
Browser: Microsoft Internet Explorer V5.5 using Windows NT 5.0
Subject: my opinion

Message:
 

 
> will afilias [...] repay the legal expenses occured by the party ?

Both Afilias and the WIPO have indemnified themselves in their policy agreement (which effectively amounts to a contract) against any recourse for legal costs or damages.

> Afilias should Keep the Challenges fees at minimum ...

It may be possible that they reduce the fees for the Challenge of the last resort. However, they are under no legal obligation to reduce them less than the $295 stipulated in their policy.

> 3. Afilias shouldnot challenges the domains like this without
> estabilishing the Facts about the non compliance by the registrant?

Their amended policy states that Afilias may challenge for any unspecified reason. Asuming that they have to pay the third party (WIPO) to make a challenge, one would assume that they have just cause to do so.

Keep in mind that a contract does not completely indemnify any signatory against professional negligence. However a significant burden of proof is usually placed on the plaintiff to show such neglect. If you were to go down this route, you'd need solid evidence that Afilias screwed up where a reasonable professional in the same situation would not have.

Further, there are other cases in the courts at present that have yet to determine how much responsiblity and obligation a registry should bear.  Most notably, The Electronic Frontier Foundation (EFF) has filed an amicus brief against (co-defendant) Network Solutions for its botched transfer of sex.com, causing the previous owner to lose the name to a hijacker.
 


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