[nc-udrp] Call for Votes - Rule 4(k)

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

Paragraph 4(k) of the UDRP stays a transfer of a domain name pending the
outcome of  a court proceeding brought by a domain registrant within 10 days
of a UDRP transfer order.  One of the oddities of 4(k) is that it is limited
by its own terms to that particular proceeding, and is independent upon
whether the court decision is appealed.  Moreover, there is no UDRP rule to
reverse a transfer if an appeals court does reverse the lower court.

This morning, there were two judges on the Fourth Circuit Court of Appeals
who found that aspect of the UDRP somewhat difficult to believe.  During oral
arguments, one of the judges asked the attorney for the City of Barcelona
very directly, who has the domain name now?   Amazingly, he waffled on that
pretty simple question.

The domain name was transferred immediately after the district court
decision, even though the case is under appeal.  The judge's assumption was
that the transfer had been stayed pending appeal, and she didn't seem to
understand why the name had been transferred.  Of course, she didn't realize
it was a direct consequence of the UDRP's failure to address the situation
where an appeal of a post-UDRP action is brought.  She had naturally assumed
that as long as judicial proceedings were pending, that the status quo would
be maintained, and it seemed something of an insult to judicial authority
that the UDRP, by its terms, does not recognize the authority of an appellate
court.

This oddity of the UDRP caused another judge on the panel to ask, "How do we
get the domain name back?"

Good question.  In fact, one of the attorneys for the city plainly stated
even if the courts deem the domain registration is ultimately deemed lawful
by the courts, such a determination no longer affects the status of the
domain name registration, because the UDRP only addresses the immediate
consequences of the court proceeding brought by the registrant.  This is, of
course, an admission that the UDRP is drafted in such a way that a lawfully
registered domain name can be taken in a UDRP proceeding, and if the first
court gets it wrong, then it is game over for the domain name registrant.

Cute, huh?

In view of the concerns expressed by these US federal appellate judges, it
might be a good idea to take a look at whether the rule should be more
specific to a "final judicial determination", and not a determination that is
still subject to appeal.

The intent of the UDRP is not to usurp the authority of national courts.
However, if Rule 4(k) is interpreted, as it has been so far, as ending with
the court of first instance, then the UDRP unintentionally does usurp the
authority of national court systems by acting upon what may not be the last
word that a national court system has to say in the matter.

There has already been one post-UDRP decision reversed on appeal in the US
courts.  In the Corinthians case, the district court dismissed for lack of
jurisdiction.  That court was reversed by the First Circuit, however.  The
Barcelona appeal was argued today, and is still pending.

Is anyone on the Task Force opposed to an amendment of Rule 4(k) along the
following lines (inserstions indicated in capital letters):

(ii) evidence satisfactory to us that your lawsuit has been dismissed or
withdrawn AND SUCH DISMISSAL OR WITHDRAWAL IS NOT SUBJECT TO APPEAL OR
REVERSAL; or (iii) a copy of an order from such court dismissing your lawsuit
or ordering that you do not have the right to continue to use your domain
name, AND SUCH ORDER IS NOT SUBJECT TO APPEAL OR REVERSAL.

To get a sense of consensus, perhaps votes could be cast as:

NO - No such change to the UDRP is warranted.

NO OPINION - I have no opinion, since we are not here to discuss anything.

YES REVISE - Yes, but with different language.

YES

Presumably, the issue of interim orders would follow the norm relative to the
standard domain contract language on following court orders.