Hi Claudio, Thanks for your response. On Sun, Nov 19, 2017 at 6:59 PM, claudio di gangi <ipcdigangi@gmail.com> wrote:
1) is the decision in the case you cite appealable to a higher court? If yes, the issue may not be 'settled law' until that potential appeal is raised by the moving party and considered by a 'higher' court within the jurisdiction.
I'm not aware of any domain name case has proceeded to a supreme court or highest court in any jurisdiction worldwide. So, to talk about "settled law" --- by what standard? These are real cases, where ICANN's policy is causing the problem. And read the commentary on out-law.com, lexology.com, etc. that I included (and there are other articles too). TM lawyers are exploiting that vulnerability.
2) whether a court has jurisdiction over a particular case is a legal issue that can be changed potentially by passing a new statutory law (or sometimes even by amending the constitution). For example, this happened in the United States with the anti-cybersquatting legislation you mentioned. If this jurisprudence is limited to the UK and Australia, then it's possible the laws in these countries can be updated to bring them more in line with international norms.
Expecting that legislatures around the world are going to prioritize creating new legislation to fix a problem that ICANN has created is not realistic. That's reversing the way things should be. Countries create their own legislation based on their own value systems, etc. ICANN has to be careful to not create policies that interfere with those laws (I don't want to open up the WHOIS debate, or GDPR, but see that the identical issues are engaged there; they're not going to change their laws to help fix ICANN's problems).
One other thought: if the solution you mention in #2 below were to be adopted, then cybersquatters could simply register their domains with false Whois information corresponding to that country, and the ADR procedures would no longer be applicable. This would be an exception that swallows the rule.
I recall this type of gaming has happened on a similar topic: a company based in India was offering 'services' to registrants because the appeals process takes a long time in India, so a trademark owner would have to wait years before they could get the domain transferred, see:
https://www.inta.org/INTABulletin/Pages/UDRPHijackingAvoidinganInvoluntaryPa...
The example you cite (perhaps I'm misreading it) doesn't appear to involve fake WHOIS. It appears to be real WHOIS (i.e. they incorporated a real entity in India; just like Amazon, Apple, etc. incorporate entities around the world to take advantage of favourable jurisdictions for taxes or IP in Ireland, Cayman Islands, etc.). If it actually did involve fake WHOIS (i.e. a totally fabricated entity that didn't exist), that fake entity wouldn't be able to have standing to bring any case anywhere (i.e. I would think that the very first thing a good law firm representing a TM owner would do is have the case against them dismissed because the entity bringing the action doesn't really exist!). Fake WHOIS could also be handled via WHOIS accuracy complaints.
I am qualifying my statements because I have not read the case you identified, but hope you find this feedback helpful.
I do find it helpful, yes. We should definitely consider any "edge cases" to the "fixes" we deploy. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/