Thank you George,

I do want to clarify something.   There are only two ways an IGO could be faced with the issue of "Mutual Jurisdiction" and a threat of loss of immunity:

1.  IGO files UDRPS and respondent files legal action during or following the UDRP.

2.  A complainant files against an IGO (the IGO being the respondent) and the IGO initiates litigation.  This would be a very rare situation.

The most likely is #1.  In that case it is the IGO who initiated the proceeding to protect a commercially used intangible right.  The only issues I see are:

     A.  Does the IGO have immunity as concerns commercial use of a mark and/or enforcement of its trademark rights?  I believe the prevailing authority is no and the research will bear this out.

      B.  If the response to "A" is no then are we willing to create a system granting the, immunity? I am completely against doing so.



Paul Keating

On 11 Mar 2015, at 9:14 pm, George Kirikos <icann@leap.com> wrote:

Hi folks,

To followup on our meeting today, I did some checking in the online
PACER database of US court cases, to help determine whether the "myth"
that IGOs never waive immunity from national court processes was true.

PACER allows one to search by the "nature of the suit", so I limited
my searches to category 840 (trademarks). After trying various names
of parties, I found 2 different cases that are relevant.

In 1994, The International Bank for Reconstruction and Development
(i.e. The World Bank) filed suit in Delaware against "World Bank
Limited" and won a default judgment.

In 1995, the United Nations Children's Fund (i.e. UNICEF) filed suit
in the Southern District of New York against "Art '95", and the matter
concluded with a consent judgment.

PDFs of the dockets for both cases are attached (the underlying
complaints/responses weren't available online, presumably because of
the age of the cases).

I think these 2 examples help to shatter the myth, given that the IGOs
actually *brought* the cases to the courts, as plaintiffs! Why could
they not do the same in a domain name dispute?

This goes to the entire purpose of this working group. The "problem"
that IGOs claimed to have was the lack of a curative mechanism for
alleged infringements of their names and acronyms by others. If the
UDRP didn't exist, it's clear that their only alternative would be via
the courts. The fact that IGOs have brought trademark cases to the
courts on multiple occasions demonstrates that as a viable option,
just like it is for any other complainant.

The existence of the UDRP is not a replacement for the courts. It
gives complainants an *additional* option. No one forces complainants
to file a UDRP -- they could have instead filed in court (where they'd
be subject to the relevant court jurisdiction).

IGOs have said they can't use the UDRP -- we've already shown examples
of IGOs filing UDRPs. Presumably they wanted to use the UDRP, to avoid
having to go to court, where they'd be subject to the court's
jurisdiction thus conflicting with their claimed immunity. Well, now
we have cases where they've gone to court!

In conclusion, these cases help illustrate that IGOs should be treated
the same as everybody else, and that no "special" rules need to be
created for them.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/
<WorldBank-v-WorldBankLimited-docket.pdf>
<UnitedNationsChildrensFund-v-Art95-docket.pdf>
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