UDRP , "Mutual Jurisdiction "

[domaingenius]

I noticed that the definition of ICANN UDRP rules states,quote;
Mutual Jurisdiction means a court jurisdiction at the location of either (a) the principal office of the Registrar (provided the domain-name holder has submitted in its Registration Agreement to that jurisdiction for court adjudication of disputes concerning or arising from the use of the domain name) or (b) the domain-name holder's address as shown for the registration of the domain name in Registrar's Whois database at the time the complaint is submitted to the Provider. End Quote

This does not read clearly and wonder if anyone knows decisively (a) who choose the mutual jurisdiction (a) or (b) ?. (b) does it by words "at the location of either" mean that the respondent can choose, or is he bound by choice of complainant ?. (c) What if the Registrar agreement DOES tie the Respondent to a Jurisdiction that is different from the Respondent's address in whois ,surely then the Respondent is committed to the Jurisdiction of the Registrar even though the Complainant may choose
the Respondents address as Jurisdiction ,otherwise the Respondent would be breaching the terms of his agreement with the Registrar ?

anyone know definitively ?

DG

 

[David G]

I believe ot means if you live in England and your domain is at Godaddy you would need to come to Arizona for each court hearing, or if the name is at Fabulous you must travel to Australia.

No problem for a big firm to do that and hire attorneys there but for you it appears real valuable for you to find a UK registrar. Problem is every UK firm I dealt with in the past was either very high priced, makes transfers away almost impossible, is a scammer, or very diificult to deal with and unfriendly.

I noticed that the definition of ICANN UDRP rules states,quote;
Mutual Jurisdiction means a court jurisdiction at the location of either (a) the principal office of the Registrar (provided the domain-name holder has submitted in its Registration Agreement to that jurisdiction for court adjudication of disputes concerning or arising from the use of the domain name) or (b) the domain-name holder's address as shown for the registration of the domain name in Registrar's Whois database at the time the complaint is submitted to the Provider. End Quote

This does not read clearly and wonder if anyone knows decisively (a) who choose the mutual jurisdiction (a) or (b) ?. (b) does it by words "at the location of either" mean that the respondent can choose, or is he bound by choice of complainant ?. (c) What if the Registrar agreement DOES tie the Respondent to a Jurisdiction that is different from the Respondent's address in whois ,surely then the Respondent is committed to the Jurisdiction of the Registrar even though the Complainant may choose
the Respondents address as Jurisdiction ,otherwise the Respondent would be breaching the terms of his agreement with the Registrar ?

anyone know definitively ?

DG

 

[domaingenius]

I believe ot means if you live in England and your domain is at Godaddy you would need to come to Arizona for each court hearing, or if the name is at Fabulous you must travel to Australia.

No problem for a big firm to do that and hire attorneys there but for you it appears real valuable for you to find a UK registrar. Problem is every UK firm I dealt with in the past was either very high priced, makes transfers away almost impossible, is a scammer, or very diificult to deal with and unfriendly.

Yes, agreed. Since Jurisdiction is SUCH a major tool in the arsenal of defence (lawyers obviously will poo poo this because they want a protracted
fight to earn fees) can we perhaps start a thread on here with members posting whether their country accepts litigants in person, whether directors can
represent their company in Court etc etc ?. For one example of tactics. I hear there is something called the "italian torpedo" ,which means that one can issue an application in Italy (upon receipt of a UDRP perhaps) and only at trial will the Court decide whether they have jurisdiction. Of course I am not suggesting anything but just pointing out what I learnt recently.
Jurisdiction is the main defence to UDRP's ,especially ones you might lose. Perhaps India would also be good ?

DG

---------- Post added at 03:22 AM ---------- Previous post was at 03:21 AM ----------

I should add that the Italian Courts can take upto 7 years to get to Court, missed the important bit out sorry.

 

[Cartoonz]

you guys are all confusing UDRP with actual court jurisdiction.
They are not the same thing.

 

[domaingenius]

you guys are all confusing UDRP with actual court jurisdiction.
They are not the same thing.

No I am not confused. If you read the original post it related to UDRP question on jurisdiction, but of course that is tied in with Court jurisdiction also.

DG

 

[domaingenius]

I have been reading some more on Italian jurisdiction, and for sure, part from the language barrier, it would be a good jurisdiction to defend against a UDRP as
as soon as an Italian court proceeding is started it would take at least 5 years to come to trial and then perhaps 8-10 if appealed. If anyone is like minded and wants to establish a shared office in Italy then please let me know.

DG

 

[David G]

But if the domain is at Godaddy for example and you are in UK then the plaintiff in a court case could opt for trial in USA AZ. If using the URP process there is no court jurisdiction involved anyway so how in the world could Italy be involved in either scenario?

I have been reading some more on Italian jurisdiction, and for sure, part from the language barrier, it would be a good jurisdiction to defend against a UDRP as
as soon as an Italian court proceeding is started it would take at least 5 years to come to trial and then perhaps 8-10 if appealed. If anyone is like minded and wants to establish a shared office in Italy then please let me know.

DG

 

[domaingenius]

But if the domain is at Godaddy for example and you are in UK then the plaintiff in a court case could opt for trial in USA AZ. If using the URP process there is no court jurisdiction involved anyway so how in the world could Italy be involved in either scenario?

Forget the fact I am in the UK ,that did not come into my question anywhere. If I have an Italian address and register a domain with GoDaddy the choice of jurisdiction is either USA or Italy. If I register with an Italian Registrar using my Italian address then only choice is Italy. If I register with Indian Registrar using my Italian address then the choice is India or Italy. This though does not answer the question I posed.
DG

 

[Theo]

Ask Elliot at DomainQuestions.com

 

[Cartoonz]

There was a certain fellow that used such a scheme in India (notoriously long drawn out timelines for Legal procedure). Registrar was based in India and Registrant service (a form of whois privacy protect) based there too. It basically worked like this.... Transfer names there and if/when a TM holder went after the name, the individual would tie the proceedings up for years in Indian court... in exchange for a portion of the parking revenue (which was sometimes quite substantial).

Problem is, the house of cards eventually was crushed by Verizon and the individual not only lost ICANN accreditation for the Registrar but sustained a massive judgment against him as well. To top it all off, he literally stole several high income domains that were not infringing and continued on as if they were his own, completely screwing the owners entirely.

So, to answer your question... yes, either the location of the Registrar or the location of the Registrant is the location of jurisdiction recognized by the UDRP/WIPO for a court proceeding within 10 days after the UDRP decision to stay transfer of the domain. The domain stays under Registrar Lock for the duration, making NS or any other changes impossible. This is because the UDRP dispute really is a dispute between the Registrant and the Registrar, as those are the two parties to the contract... confusing maybe, but that's the gist of it. The Complainant merely sets the machine in motion, so their location is irrelevant to the proceedings.

Now, before anyone gets too happy and thinks this is the magic shield for cybersquatting, think again... Companies can file Federal cases against the domain name itself (especially in the US) and have the Registry effect Transfer (located in USA).

disclaimer-on ]...of course this is what I understand, do not assume I know anything at all of such things [/disclaimer

 

[David G]

I believe the choice of court filing location (i.e. US/Italy as in your example) is the plaintiff's decision, not yours. Also, as said before, with a UDRP case there is no court involved.

 

[domaingenius]

There was a certain fellow that used such a scheme in India (notoriously long drawn out timelines for Legal procedure). Registrar was based in India and Registrant service (a form of whois privacy protect) based there too. It basically worked like this.... Transfer names there and if/when a TM holder went after the name, the individual would tie the proceedings up for years in Indian court... in exchange for a portion of the parking revenue (which was sometimes quite substantial).

Problem is, the house of cards eventually was crushed by Verizon and the individual not only lost ICANN accreditation for the Registrar but sustained a massive judgment against him as well. To top it all off, he literally stole several high income domains that were not infringing and continued on as if they were his own, completely screwing the owners entirely.

So, to answer your question... yes, either the location of the Registrar or the location of the Registrant is the location of jurisdiction recognized by the UDRP/WIPO for a court proceeding within 10 days after the UDRP decision to stay transfer of the domain. The domain stays under Registrar Lock for the duration, making NS or any other changes impossible. This is because the UDRP dispute really is a dispute between the Registrant and the Registrar, as those are the two parties to the contract... confusing maybe, but that's the gist of it. The Complainant merely sets the machine in motion, so their location is irrelevant to the proceedings.

Now, before anyone gets too happy and thinks this is the magic shield for cybersquatting, think again... Companies can file Federal cases against the domain name itself (especially in the US) and have the Registry effect Transfer (located in USA).

disclaimer-on ]...of course this is what I understand, do not assume I know anything at all of such things [/disclaimer

Thanks for the info, very interesting. I should say however that I am not
even thinking of what they like to call "cyber squatting" but what I am speaking of is protecting legitimately owned domains for which I have as much rights as anyone (such as a UDRP complainant) and it is those domains that I seek to protect by seeking best jurisdiction for litigation to
protect them. Of course if someone registers an established or well known trade mark and expects to keep it then I can understand that is a no,no, but as I say I speak merely of protection against what is a one sided (for complainant and against respondent) process called UDRP.

DG

---------- Post added at 04:04 AM ---------- Previous post was at 03:54 AM ----------

I believe the choice of court filing location (i.e. US/Italy as in your example) is the plaintiff's decision, not yours. Also, as said before, with a UDRP case there is no court involved.

David, yes thats what I couldnt quite understand ,and my original question is about. I appreciate of course that UDRP does not automatically involves Courts, but one can choose to issue proceedings before ,during or after UDRP proceedings have commenced, and that is exactly what I am looking
at in terms of jurisdiction .

 

[Dave Zan]

I don't know if posting a link to another forum is allowed. But here's the answer
by John Berryhill on this subject:

The Complainant is constrained in that choice to (a) the registrant's location, or (b) the registrar's location.

The point was to specifiy at least one jurisdiction to which the Complainant would admit for a challenge of the UDRP decision, and to which the registrant has already admitted by virtue of being located wherever he/she/it is, or by virtue of doing business with the registrar in question.

So in short, only the complainant can choose the jurisdiction. However, s/he
can only choose either that of the registrar or the registrant/domain holder.

 

[Cartoonz]

Uhh... almost.
Say a Registrant is in the USA but uses Fabulous (AU)
Sure, the complainant can choose Australia as the venue for the UDRP but the Registrant can most assuredly challenge an adverse decision of such proceedings through a US Federal court.... making the whole "Complainant chooses" thing moot.

 

[domaingenius]

Uhh... almost.
Say a Registrant is in the USA but uses Fabulous (AU)
Sure, the complainant can choose Australia as the venue for the UDRP but the Registrant can most assuredly challenge an adverse decision of such proceedings through a US Federal court.... making the whole "Complainant chooses" thing moot.

Yes agreed ,at end of day if either complainant or respondent sought jurisdiction in USAthey would get it.Look at the Barcelona case as the only I know of but plenty more im sure.

DG

 

[Dave Zan]

Uhh... almost.
Say a Registrant is in the USA but uses Fabulous (AU)
Sure, the complainant can choose Australia as the venue for the UDRP but the Registrant can most assuredly challenge an adverse decision of such proceedings through a US Federal court.... making the whole "Complainant chooses" thing moot.

Yes agreed ,at end of day if either complainant or respondent sought jurisdiction in USAthey would get it.Look at the Barcelona case as the only I know of but plenty more im sure.

DG

Let's use that scenario with Fabulous.

If the complainant chooses Fabulous' jurisdiction over the registrant's in UDRP
and subsequently wins, then the registrant files in, say, California and gets a
default, Fabulous doesn't really have to comply with that California order. It's
not in their contract, and they obviously don't have to follow any court order
issued outside their area unless they choose to honor it anyway.

As for Barcelona.com, it was decided in the original NSI's state because both
the registrar and the registrant were domiciled there that time. Lucky?

 

[domaingenius]

Let's use that scenario with Fabulous.

If the complainant chooses Fabulous' jurisdiction over the registrant's in UDRP
and subsequently wins, then the registrant files in, say, California and gets a
default, Fabulous doesn't really have to comply with that California order. It's
not in their contract, and they obviously don't have to follow any court order
issued outside their area unless they choose to honor it anyway.

As for Barcelona.com, it was decided in the original NSI's state because both
the registrar and the registrant were domiciled there that time. Lucky?

So really to be sure what Jurisdiction you will get you need to have a registrar located in same place as registrant. Do they have registrars in timbuctoo and I will go and live there ?. Is there anywhere ,besides Italy that has very slow court proceedings, like years and years ?. They say that Italy takes 7 years to get to trial but then there is language barrier.
DG

 

[snicksnack]

India for sure

 

[domaingenius]

India for sure

Yes India had crossed my mind, however to be conclusive firstly need to find a cheap lawyer (is there such a thing) who will issue proceedings there
as and when needed.
DG