Hi folks, On Wed, Mar 11, 2015 at 5:31 PM, Paul@law.es ZIMBRA <paul@law.es> wrote:
In that case it is the IGO who initiated the proceeding to protect a commercially used intangible right.
Indeed, Paul, I think this also relates back to the case that Jay Chapman brought up in the chat today, saved at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2015-March/000300.html about "litigation conduct", and that "the advocates for state immunity did not intend for a state or an arm of the state to wield its immunity ‘to achieve unfair tactical advantages’.” In the absence of the UDRP, a complainant would be exposed to the jurisdiction of the courts (regardless of whether they're an IGO or not. The crafters of the UDRP recognized this, and ensured that no tactical advantage was gained by filing the UDRP -- there'd still be some court's jurisdiction that the complainant (initiator of the UDRP) would be subject to (in the event of an appeal, etc.). That jurisdiction (and ability to appeal to national courts) is a critical element to ensure that rulings of the UDRP providers/panelists are consistent with relevant national laws. Otherwise, they could ignore legal precedents in the national courts with impunity. The UDRP rules mention "applicable law" in multiple places, so panelists shouldn't ignore it. But, in the absence of any appeal mechanism to those national courts, one could foresee an unchecked and long-term deviation by the UDRP providers and panelists from those applicable national laws. Case in point, the AustinPain.com court judgment: http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.uscourts... which was in relation to the UDRP at NAF: http://domains.adrforum.com/domains/decisions/1536356.htm acts as a check against the *unanimous* 3-person panel who ordered the transfer (in the lawsuit, the UDRP decision was set aside, the domain name registrant kept the domain, and was awarded $25,000). BTW, I actually sent *multiple* emails to WIPO, to have the court decision in the AustinPain.com matter posted to their list of court cases at: http://www.wipo.int/amc/en/domains/challenged/ but guess what --- WIPO hasn't posted it! That should tell you something... Sincerely, George Kirikos 416-588-0269 http://www.leap.com/