Hi folks, Just to followup on last week's email: On Wed, Jul 19, 2017 at 6:46 PM, George Kirikos <icann@leap.com> wrote:
It's been assumed in the analysis that the only court action must be against the complainant (IGO) in the UDRP. That need not be the only option open to a domain name owner.
I've actually talked to my own lawyers about how best to approach things (I've already hinted on this list how that would happen, even if the IGO could assert immunity successfully, for the sake of arguments). I'll see if I can share the results of that (paid) research later this week or next, once that research is concluded.
Patricia McMahon of Torys (same law firm I used for the successful Pupa.com domain dispute litigation): http://www.torys.com/people/mcmahon-patricia looked into this for me, and confirmed my thoughts on the 'in rem' alternate approach (i.e. as opposed to, or even in conjunction with an in personam case brought against the IGO) to oppose a UDRP transfer decision, at least in Canada: "Building on the Court of Appeal’s finding that a domain name is intangible property (See Tucows.com Co. v. Lojas Renner S.A.),[ http://canlii.ca/t/fmjtv ] the recent case of Western Steel and Tube Ltd v. Technoflange Inc. [ http://canlii.ca/t/h3j5g ] suggests that, where proper procedures are followed, an in rem declaration may be available to protect domain names. Such claim for a declaration would be brought under section 97 of the Courts of Justice Act. Unfortunately, the decision of the trial judge who awarded the in rem declaration in Western Steel Tube is not available, so I have not been able to read the court’s reasoning on the point." (she said it was fine if I shared this with the working group; we're trying to get a copy of the Western Steel Tube trial judge decision, too) Anyhow, we had a 30 minute conversation earlier today after I received her written analysis where we ran through various scenarios/options, including the Options 1, 2, 3, 4, etc. that our PDP has been contemplating, and based on that I don't think we've "missed anything" as a group as to what the implications would be of the various approaches/proposals. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/