MARCHEX SALES, INC., v. TECNOLOGIA BANCARIA, S.A.,
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Case 1:14-cv-01306-LO-JFA Document 17 Filed 05/21/15
In filing its UDRP complaint, Tecnologia agreed that it would "submit, with respect toany challenges that may be made by the Respondent to a decision by the Administrative Panel totransfer the domain name that is the subject of this Complaint, to the jurisdiction of the courts atthe location of the principal office of the concerned registrar." (Compl. ~ 16). Plaintiff allegesthat this court has personal jurisdiction over the defendant because of this agreement "to submitto jurisdiction of the registrar in connection with a challenge of a UDRP decision ordering atransfer of the Domain Names." (Compl. ~ 3).
While it is clear that the defendant has consented to the jurisdiction of this court for thepurposes of challenging the WIPO panel's decision to transfer the subject domain names in the"Mutual Jurisdiction" clause of the UDRP complaint (Com pl. ~ 16), the relief sought by theplaintiff in the complaint before this court and in the motion for default judgment goes farbeyond a "challenge" of the WIPO panel's decision. Plaintiff is not only seeking a declarationthat its registration and use of the subject domain names is lawful and proper and the domainnames should not be transferred to the defendant as ordered by the WIPO panel, it is also seekingan award of damages and attorney's and costs under the Lanham Act.3
As discussed during the hearing on May I, 2015, plaintiff has not alleged any facts thatwould support a finding of personal jurisdiction over this foreign defendant for claims other thana direct challenge to the WIPO panel's decision to transfer the domain names- the only claimthat the defendant agreed to have litigated in this forum. To allow claims other a challenge towhether a domain name should be transferred in accordance with a WIPO decision to be broughtagainst a complainant in a WIPO proceeding based on the mandatory provision that thecomplainant submit to jurisdiction of the courts at the location of the principal registrar of thedomain name would greatly and unfairly expand the scope of the agreement and the exposurethat any complainant could face by filing a UDRP complaint.The United States Supreme Court has consistently held that "a party can be forced toarbitrate only those issues it specifically agreed to submit to arbitration." First Options ofChicago, Inc. v. Kaplan, 514 U.S. 938, 945 (1995). The Fourth Circuit has also recognized thatwhether a party has agreed to arbitrate an issue is a matter of contract interpretation and that aparty cannot be required to submit to arbitration any dispute which he has not agreed so tosubmit. Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 92 (4th Cir.1996) (quoting United Steelworkers of Am. v. Warrior Gulf Navigation Co., 363 U.S. 574, 582(1960)). In a similar vein, the UDRP requires the parties to submit to arbitration only claimsconcerning the registration of a domain name and a party to a "mutual jurisdiction" clause likethe one required in the UDRP complaint should not be forced to submit to the jurisdiction of aforeign forum for any claims that it has not agreed to submit. In the mutual jurisdiction clauserelied on by the plaintiff, the agreement is limited to a challenge of a decision to the transfer ofthe domain name. It is not a broadly worded agreement whereby the complainant agrees to aspecific jurisdiction for the resolution of all claims between the parties to be litigated, or even anagreement that all claims arising out of or related to the UDRP complaint to be litigated in theforum. The language is specific; it involves only a challenge to a panel's decision to transfer adomain name. To find that such a provision would subject a party to anything more than achallenge to the panel's decision would be unfair and would be inconsistent with the due processclause of the U.S. Constitution. While it was not required to address the issue directly, in asimilar action the Fourth Circuit has recognized the argument made by a defendant that a courtlacks jurisdiction regarding any cause of action other than the challenge to the panel's decision in
the UDRP proceeding. Barcelona.com, 330 F.3d at 623.For these reasons, the undersigned magistrate judge recommends a finding that the courthas subject matter jurisdiction over this action, that the court has jurisdiction over only the claimconcerning the challenge to the WIPO panel's decision, and that venue is proper in this court forthat claim.
The NGO successfully seeks dismissal on the basis of sovereign immunityAnd the litigation is dismissed as a result of the granting of the NGO’s motion to dismissThe UDRP decision will be vitiated.
George:This co-chair categorically reject your reckless charge that I have engaged in "fear-mongering".I regard that as a personal affront. You really should apologize.Please stick to the substance ands stop making reckless and unfounded allegations about others' motivations.As for revelation of how any member voted on our preliminary consensus call, those members who wish to reveal how they marked their ballots are free to do so -- but we will not violate reasonable expectations of privacy, especially when it now clear that support for Option C can expose one to reckless charges.Philip-----Original Message-----From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George KirikosSent: Friday, November 17, 2017 2:17 PMSubject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-CI think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like:"Fair and balanced" (supporting C)"DOA at Council" (opposing A)bereft of credible reasoning.This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey.In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of thatat:I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable.It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that.Sincerely,George Kirikos416-588-0269On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org> wrote:Dear all,As noted on the Working Group call yesterday, please find attached theconsolidated results of the informal poll that was conducted regardingWorking Group member preferences as among Options A, B and C.Individual Working Group members – especially those who providedspecific comments as part of their poll response – are invited to addany relevant background and further thoughts to this email.Thanks and cheersMary_______________________________________________Gnso-igo-ingo-crp mailing list_______________________________________________Gnso-igo-ingo-crp mailing list_______________________________________________Gnso-igo-ingo-crp mailing list