korean defaulted on agreement

[jberryhill]

Does it make a difference where the registrar is located for the purposes of freezing the domain name?

There are the worlds of:

1. What people do.
2. What people are supposed to do.
3. What an individual person will do.

There is reasonable basis for jurisdiction in Rhode Island (although I haven't seen if your agreement says otherwise, and given your preference for paying your lawyer wonder why I compulsively respond to these questions [1]), and the RAA requires registrars to freeze a domain when a suit over the domain is brought in a court of competent jurisdiction. Sometimes, when a registrar does not cooperate, you can persuade ICANN to lean on the registrar. That used to be Dan Halloran's job, now it is Ellen Sondheim's job.

Answers 1 and 2 tend generally toward "lock the name, and transfer it in response to a court order". NSI, for example, locks and transfers whether or not the court in question has jurisdiction. On 3, I am aware of at least one Korean registrar that has been reluctant to respond to a US court order, and the prevailing plaintiff had the registry yank the domain out from underneath them.

---

[1] Hal is obviously capable of obtaining legal advice for his situation, and my comments here are intended for public discussion, and not for Hal to rely on (especially since Hal has threatened action against me in the past).

 

[Yoshiki]

Would a possible court order from a Rhode Island court compell a foreign registrar? Or, by going directly to NSI with the court order, as the central registry, to transfer the name?

Well, only a Korean court order can compell a Korean registrar and a WIPO dicision in your favor loses its effect once the defaulter files a counter law suit at a court in Korea.

 

[DaddyHalbucks]

JB wrote:

(especially since Hal has threatened action against me in the past).
++++++++++++++++++

I thought we were friends now. Let's not rehash the long past matter of your previous posts which may have been misleading and which naturally prompted my anger.

 

[jberryhill]

Well, only a Korean court order can compell a Korean registrar

That is not at all accurate. Every registrar, no matter where they are located, is under contract to ICANN. Even if the registrar does not do what they are supposed to do under the ICANN contract, the prevailing party in a suit can a do this:

www.cov.com/download/content/brochures/aol.pdf

...it appears that this latest change of registrars may have been motivated by a desire on the part of the registrant, or those controlling a fictitious registrant, to place another obstacle in the path of enforcing the Judgment Order by ensuring that the domain name in issue is in the hands of a registrar with no contacts with this country. OnlineNIC, the previous registrar, although headquartered in China, also maintains an office and employees in San Francisco, California, and plaintiff might have sought to enforce the Judgment Order through a federal court in that city. By contrast, Netpia, the current registrar, apparently has no American footprint, which invites the inference that this was the reason for the change of registrars.

...

Thus, a transfer order would not enjoin any use of the AOL mark by the registrant in South Korea or elsewhere; indeed, it would not even prevent the infringing registrant from using the AOL mark on some other web site or in connection with its products or services offered in Korea. In other words, an order directing a United States registry to transfer an infringing domain name to the trademark owner only compels a domestic entity to do something within this country; it does not require any foreign entity to do anything outside of this country. So, while extraterritorial consequences may flow from a transfer order, this is no more an illegitimate extraterritorial application of the ACPA or Lanham Act than occurs when court orders vindicating federal rights routinely compel actions solely within this country that have effects outside this country.

...

Comity concerns might dictate that a foreign registrar be given an initial opportunity to transfer the domain name in response to a court order through the normal registrar-registry procedures before a court directs the registry to transfer the domain name. In this case, however, that avenue has plainly failed, as OnlineNIC and Netpia have declined to comply with the Judgment Order and hence comity requires no further opportunity for action by the recalcitrant registrar.



See also:

http://www.icannwatch.org/article.pl?sid=03/02/11/1758230&mode=thread

 

[Theo]

The real issue is that there is no domain dispute to be brought under a UDRP. It's not a trademark issue or a domain that was stolen. It's simply a sale gone sour. The seller did not receive any money and failed to deliver the domain. It will be rather difficult to enforce an agreement that failed to materialize. If he initiated the Escrow transaction, he will be able to cancel it, citing reasons of his own. In my opinion it's a lost case.

 

[jberryhill]

The real issue is that there is no domain dispute to be brought under a UDRP. It's not a trademark issue

That's not the point. The underlying cause of action in the cnnews or globalsantafe cases was irrelevant to the point that, in the US, you can get the registry to cooperate with US court orders regardless of what a Korean registrar wants to do.

On your second point, no, you can't just back out of a sales contract. Absolutely, you may refuse to follow through on payment via Escrow.com. That has nothing to do with your obligation on the contract to sell the domain name. Escrow.com was just a payment mechanism. You can buy something and cancel a check, too. Simply because your bank allows you to cancel a check does NOT mean you don't have to answer to the party to whom that check was written.

 

[Yoshiki]

...it appears that this latest change of registrars may have been motivated by a desire on the part of the registrant, or those controlling a fictitious registrant, to place another obstacle in the path of enforcing the Judgment Order...

True. An US court order can bypass a disobedient foreign (Korean, in this case) registrar by compelling the Registry (VeriSign) which is under the US
jurisdiction.

 

[Yoshiki]

An US court order can bypass a disobedient foreign (Korean, in this case) registrar..

But, in this DH's specific case, I very much doubt that an US court can bully
the domain in question out of the Korean defaulter.

As I said before, I could help, but DH seems to prefer fighting head to head
making his lawyer richer.

 

[DaddyHalbucks]

I just got an email from the Korean. He wants $1500. That's far less than my legal costs.

If only I trusted him..

 

[Yoshiki]

I just got an email from the Korean. He wants $1500.

Very good, DH. Try to lower it to $900 by first suggesting $750.

 

[Yoshiki]

Any development on this matter, David?

 

[DaddyHalbucks]

Oh, this was settled long ago.

I informed Escrow.com that the Korean defaulted, and instructed them to refund my money. They did so, and I am very happy.

 

[Yoshiki]

So, you didn't get the domain name AFTER ALL. Am I alone to think that
we had been concerned on the matter far more than we should?

Oh, this was settled long ago.

I informed Escrow.com that the Korean defaulted, and instructed them to refund my money. They did so, and I am very happy.

 

[Dave Zan]

I don't know how escrow.com works entirely. But did you get your money
back in full, then?

If so, then does the domain name mean so much to you that you're willing to
go thru all those hassles of getting it?

 

[Fearless]

I had a similar situation. The seller agreed to sell a name for $10K. The seller agreed to the escrow at Escrow.com. I sent the money. The seller decided he wanted to sell to someone else for more money. I filed a restraining order in a Texas state court to prevent the name from changing hands.

Then it came to light that the name was hijacked. My actions froze the name long enough so the rightful owner could go through the motions to get the name back.

The greedy hijacker got nothing.

 

[Dave Zan]

I had a similar situation. The seller agreed to sell a name for $10K. The seller agreed to the escrow at Escrow.com. I sent the money. The seller decided he wanted to sell to someone else for more money. I filed a restraining order in a Texas state court to prevent the name from changing hands.

Then it came to light that the name was hijacked. My actions froze the name long enough so the rightful owner could go through the motions to get the name back.

The greedy hijacker got nothing.

And you got your money back in full as well? Know what happened to him?

 

[Fearless]

And you got your money back in full as well? Know what happened to him?

No Escrow.com keeps 100% of the escrow fee even if it was set up for the seller to pay all of the escrow fee. Which is shitty IMHO.

I doubt anything happened to the hijacker.