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

["James A. Carmody" <carmodyjim@yahoo.com>]

John:
You raise a very interesting issue, and I vote, "Yes,
REVISE."  However, I think the language should be
something like "...unless either party presents
evidence that the denial of relief in said court
proceeding is the subject of a properly perfected
appeal...."  Even my language is not particularly good
because a losing respondent in a district court action
would have to post an appeal bond and (probably) a
supersedeas bond to have any chance of staying the
transfer.  This is an interesting problem which merits
TF discussion, I think.  Regards to all.

Jim Carmody, Houston
--- "John Berryhill Ph.D. J.D."
<john@johnberryhill.com> wrote:
> 
> 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.
> 
> 


=====
James A. Carmody, nn5o, carmody@lawyer.com
6363 Woodway, Suite 910
Houston, TX 77057
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