question UDRP and international thing

[anf]

I Just read about ADO.com UDRP case (https://www.namepros.com/threads/ad...se-of-having-a-domain-portfolio-page.1063842/), this is fu**ing sh*t (pardon my french)

So could please somebody answer this question:
Let's assume that I live in Russia and i have some domain name that is regged with Namesilo (USA). Let's assume that i lost an UDRP for a domain name. Can i fight this UDRP desition in a russian court? Would Namesilo comply with the decision of this court?

In general, what is the policy when registrar and registrant are located in different countries?

 

[anantj]

Tagging @jberryhill. I'm interested in understanding this scenario too...

 

[jberryhill]

Let's assume that I live in Russia and i have some domain name that is regged with Namesilo (USA). Let's assume that i lost an UDRP for a domain name. Can i fight this UDRP desition in a russian court? Would Namesilo comply with the decision of this court?

This question is answered in the UDRP and the UDRP Rules.

First, when the UDRP complaint is filed, the Complainant must agree that it will submit to the jurisdiction of at least one of two courts - either the jurisdiction of the Respondent, or the jurisdiction of the registrar. From the UDRP rules:


https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en

1. Definitions
...

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.

...


3. The Complaint

...


(b) The complaint including any annexes shall be submitted in electronic form and shall:

(xii) State that Complainant will submit, with respect to any challenges to a decision in the administrative proceeding canceling or transferring the domain name, to the jurisdiction of the courts in at least one specified Mutual Jurisdiction;

Okay, so, the way that interacts with the UDRP itself is:

https://www.icann.org/resources/pages/policy-2012-02-25-en

4....

k. Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that your domain name registration should be canceled or transferred, we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel's decision before implementing that decision. We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction is either the location of our principal office or of your address as shown in our Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure for details.) If we receive such documentation within the ten (10) business day period, we will not implement the Administrative Panel's decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; 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.


So, what that means is that:

1. Complainant picks, in the Complaint, whether they will submit to legal proceedings in one of (a) the registrant's location, OR (b) the registrar's location.

2. If a UDRP decision is rendered against the registrant, the registrar will not transfer the domain name if it receives, within 10 days, notice of a suit filed by the registrant in the jurisdiction that was picked in step 1.

 

[jberryhill]

So putting this together:

Let's assume that I live in Russia and i have some domain name that is regged with Namesilo (USA). Let's assume that i lost an UDRP for a domain name. Can i fight this UDRP desition in a russian court?

If, in the Complaint, the Complainant specified your location as the Mutual Jurisdiction for the dispute, then yes.

Would Namesilo comply with the decision of this court?

If, in the Complaint, the Complainant specified your location as the Mutual Jurisdiction for the dispute, then yes.

From there, it can get a little more complicated. For example, let's say that the Complainant didn't pick Russia as the UDRP Mutual Jurisdiction, but the Complainant is located in Russia and you can certainly sue them there, get an order against them there, and force a transfer back if you win. That order wouldn't be against Namesilo, but against the Russian party to whom the name was transferred.

However, in order to prevent a transfer of the domain name ICANN interprets the Mutual Jurisdiction clause to mean that the registrar should only prevent a UDRP transfer if a case is filed in the jurisdiction (registrar or registrant) that was chosen in the Complaint.

One could argue "Why does the Complainant get to choose?" but the choice of registrar is made by the registrant. So, the location of one's registrar is a choice that was made by the registrant when the domain name was registered.

 

[anf]

Thank you very much. So it looks like it's best to transfer my domains to a russian registrar. Goodbye NameSilo

 

[domeen]

Yes, if you are located outside US, then most stupid thing you can do, is to use US based registrar. I have said it for many years

 

[themavrick]

hmmm.

Please publish the list of Russian registrars, it wouldn't hurt to have some domains over there

 

[1Darko]

If you're Russian than move domain to russian registrar - case solved

 

[jberryhill]

Thank you very much. So it looks like it's best to transfer my domains to a russian registrar.

Maybe, maybe not. I'm not familiar with any Russian court rulings on UDRP decisions, nor even if it is possible to bring a post-UDRP suit under Russian law. Simply because the UDRP says you are *allowed* to file a case in the Mutual Jurisdiction, does not mean that that there is necessarily an effective type of legal action available if you try.

Certainly, the possibility of where you might have to deal with a case under the Mutual Jurisdiction clause of the UDRP is one factor that someone might consider when choosing a registrar. On the other hand, the circumstances are so rare that it shouldn't be the only factor. How many of them do you expect to lose?

 

[anf]

How many of them do you expect to lose?

For now It's just a theoretical question. It looks like that UDRP decisions are getting more and more unpredictable (ADO.com case), so i am just studying the question.

 

[jberryhill]

It looks like that UDRP decisions are getting more and more unpredictable (ADO.com case), so i am just studying the question.

Okay, so how many UDRP cases did you check out over the last year. At WIPO alone, there were some 2600 cases in 2017. Do bad decisions issue once in a while? Yes, of course. That's true of any system of adjudication. But, as a trend, I'm not seeing how you get the idea that they are "more and more unpredictable".

IMHO, the business practices of some Russian registrars are a lot more concerning than the remote possibility of a bad UDRP decision.

 

[Jurgen Wolf]

hmmm.

Please publish the list of Russian registrars, it wouldn't hurt to have some domains over there

reg.com
nic.ru

 

[anf]

Okay, so how many UDRP cases did you check out over the last year. At WIPO alone, there were some 2600 cases in 2017. Do bad decisions issue once in a while? Yes, of course. That's true of any system of adjudication. But, as a trend, I'm not seeing how you get the idea that they are "more and more unpredictable".

IMHO, the business practices of some Russian registrars are a lot more concerning than the remote possibility of a bad UDRP decision.

Yes, but some of them have good feedbacks (reg.com), plus it would not hurt to have an additional line of defence, just in case.

In any case, thank you very much for your time. I learned a lot.