Cyberlaw and the Global Economy 2003 > UDRP and the ACPA |
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Rotisserie Question
Sallen v. Corinthians (http://www.case.info/domain/corinthians1.html) demonstrates what happens when a party is unhappy with the result of ICANN's Uniform Domain-Name Dispute-Resolution Process (see http://www.icann.org/udrp/udrp.htm) and turns to her or his national law (see http://www.gigalaw.com/library/anticybersquattingact-1999-11-29-p1.html) to seek relief against a party from another country. Is this process desirable as a policy matter? Should there be any restriction on the ability of one party to appeal to national law after an adverse result under the UDRP? What level of deference should be accorded a UDRP proceeding by a sovereign's legal system? Round 2 What relevant issues, if any, did your colleague miss in her or his analysis? |
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The First Circuit in Sallen and the UDRP both struggle with the problem of creating a fair process to allocate unique resources: domain names. Only one party can control etoy.com, More...
In general, I agree fully with what you say, Derek, and I tried to say as much (though much less persuasively) in my own original post. There are a few More...
The Sallen case indicates that domain-name registrants can use ACPA to cancel unfavorable UDRP decisions. Whether this is a good thing depends, to some extent, on one’s view of the More...
I agree with this analisys and I don't think that misses any important issues. The issue which I emphasised more was the duty of the states to provide their citizens More...
There should be a restriction on one's ability to appeal to her national government.
The US court should realize that US has entered treaties with other country in relying on More...
I agree that using the UDRP is probably cheapest way to go, and possibly the best way to obtain coherence in these matters. However, the UDRP essentially amounts to an More...
This is a desirably policy because UDRP’s determinations are merely administrative and may not be always fair, especially when parties involved have unbalanced bargaining power. Therefore, UDRP explicitly allows a More...
I think you misunderstand UDRP insofar as its main purpose is. It isn't designed prmiarily to protect the registrant against abusive behavior of trademark holders (a phenomenon known as "reverse More...
I'm particularly troubled by the point made by the _Corinthian_ court that WIPO aims at the lowest common denominator (LCD) of international trademark law. I'd like to think of that More...
Although you made some very good points I am not sure that I understand your argument about the "lowest common denominator". I think Sallen v. Corinthians in that section is More...
My initial reaction is that parties should be restricted from seeking relief from national laws mainly because of the uncertainity it would create and because it seems that this would More...
The process of turning to national law after failing at the ICANN UDRP is probably a bad solution that will lead to serious problems. This will naturally affect the finality More...
Generally I agree most of the viewpoints in this post. The author points out the most important policy issue in this case, which is the finality and certainty of ICANN More...
On a conceptual level, the ability to appeal UDRP decisions within a number of different jurisdictions impedes any consistency in the decision-making process. This poses a number of problems. First, More...
Two brief notes before I begin:
1. I'm sorry I'm late in responding; my weeks are pretty much packed, and anything I don't know about the week before rarely gets More...
I find it highly undesirable to allow persons to enter into a private contract with specified terms (incorporating the UDRP) to register a domain name, and then to allow an More...
I absolutely agree with you that if there is to be an agreed-upon choice of forum, that forum alone should bind the parties. To add to your argument, WIPO would More...
I'm sure everyone else will chime in on the merits of the point; I'd like to address implimentation issues. Assume arguendo that the globally optimal solution is for all nations More...
The conflict played out in Sallen was classic: a statute of a sovereign nation trumped an international agreement. It may have some negative influence over the international order that we More...
I think in this case the most important issue is that the court seems to be erroneous in interpretation of the provision which allows the party get back the registration More...
(1) I don’t think that the way in which the Court reaches its’ decision is “strange”, I think that as a matter of law (domestic law that is), the Court More...
As a policy matter, this process is desirable. First, it is consistent with the intent of the UDRP: as the Sallen court noted, “the UDRP clearly contemplates judicial intervention” by More...
I think this process is desirable as a policy matter. First of all, Sallen was entitled to the right stipulated in the Constitution and U.S. statutes. Secondly, recourse to national More...
Great Response. Here are something that troubled me when I
read the case that you did not elaborate.
The first thing is the role of UDRP and WIPO. Obviously, UDRP More...
As a policy matter, I am troubled by the approach of turning to national law to appeal a ruling made by UDRP. Especially difficult is the fact that the appeals More...
I wonder whether collapse is really all that imminent under a regime in which UDRP decisions can be overruled by national law. In the short term, UDRP decisions will certainly More...
You pose a very interesting question here for both the technology and law involved with DNS.
I am not a natural law theorist, and admit my positivistic leanings. Moreover, I'm More...
I liked this:
"We would do better to make the technology absorb the limits of protections of trademarks, properly centering the legal discussions where they belong--with the Courts with proper More...
(1) We wouldn’t have proceedings under the UDRP if it weren’t for the compromise (of appeal to national law); and as a policy matter, we want the institutionalization of these More...
I agree that cybersquatting proceedings should be institutionalized and centralized under the UDRP. I also agree that the UDRP should incorporate reliant rules and an appeals process. In order to More...
The tension between local and “international law” is an issue that comes up again and again when dealing with the internet. On the one hand, I do not, as a More...
I see even more trouble with a built-in appellate system in the UDRP. Although it could address some errors caused by the fact that UDRP proceedings are 'on the papers', More...
As a policy matter, the possibility of parallel litigation under UDRP is desirable, because it enables the losing party – either the domain name registrant or trademark owner – to More...
I disagree with your conclusion that national courts' proceedings will yield "a more accurate and reliable adjudication" or will allow the parties "to obtain more relie[f]." You seem to get More...
I agree with your point that the possibility of challenging the decision of the UDRP panel is desirable. The mere existance of a body beyond the boundaries and jurisdictions of More...
The first question we have to ask with respect to this issue is what the possibility to turn to one's national law is supposed to achieve.
As I see it More...
I think the author a lot of good points. One potential problem with his analysis though is that I think he overstated the extent to which the UDRP process was More...
The Sallen ruling subjugates UDRP proceedings to the ACPA, allowing national law to trump an international regulating body. It seems to me like the same policy arguments recur in any More...
First of all I'm not sure we should mix other legal issues with the question of who has the right to a specific domain name. If we do, we will More...
Uncertainty of Dispute Resolution Decision
In this case, we found that the UDRP’s international and contractual process does not integrate harmoniously with a national and judicial process of ACPA. The More...
This response provides clear arguments more or less on the policy level in Urs Gasser framework. It correctly identifies that both ICANN and national laws have a common goal and More...
I find the outcome of Sallen v. Corinthians undesirable in that it dilutes the notion of uniformity of domain name dispute resolution. The international nature of domain names coupled with More...
One question I have here is how destabilizing would this actually be? For instance, if a person in Senegal appealed to his national court system after losing a domain dispute More...
I am not sure claimants seeking redress in their own national jurisdictions is necessarily undesirable. I think a brief mention of copyright is appropriate. Traditionally (under Berne anyway), there has More...
While the legal issues raised in the case are interesting, I think we shouldn't lose sight of the fact that this particular problem (i.e., UDRP vs. national law) will probably More...
The Idea that in an appeal process national court should also make its decision according to UDRP is right, only when UDRP is designed to provide a worldwide uniform standard More...
I found your text and analysis forceful and the use of statistics helpful in terms of helping us put this case in perspective. I would like to emphasise UDRP 4(k); More...
When possible, cyberspace should be viewed and designed as an autonomous system and society, adopting a set of laws emerging from its “cybercitizens.” This view of the Internet proves problematic More...
The preceding analysis clearly and effectively outlines the benefits of a sovereign cyberspace system, as well as the drawbacks of the current UDRP system. However, in characterizing a global Internet More...
Perhaps most obviously, the biggest problem with such a system is that it undermines the stability and predictability of the contracts currently in place which rely on UDRP while also More...
This response highlights an important consideration regarding domain name disputes: the predictability of resolution and its costs. However, it seems to rest on an assumption that the UDRP process itself More...
As I've learned, one of the weaknesses of international law is that sovereign countries don't need to follow attempts at law-making by supra-national institutions, especially one as new as UDRP. More...
The point about .country suffixes is a great one, and it never even crossed my mind to relate them to the UDRP before reading Josh's post. If administrative bodies in More...
Apologies for the rather sketchy non sequiter in my original post (jsavi).
That said, hopefully this qualifies as a satisfactory contribution.
I found the entirety of the threads and viewpoints More...
I think that it is undesirable that there are different standards applied to domain-name-disputes. If it is possible to appeal to the national law from the UDRP decisions, then the More...
I am not sure if it is right to frame the issue in terms of consumers being able to find "justice" only in a courtroom--whether it's a global court of More...
This to my mind, seems to be a case of having the best of both worlds - in the short term there is unlikely to be much fuss. In the More...