ICANN RAA v Luxembourg Courts: EuroDNS Disputes 'Unfounded' Breach Notice
Posted in: Domain Names at 22/04/2011 14:00
ICANN has accused Luxembourg-based registrar EuroDNS of breaching their Registrar Accreditation Agreement according to a letter dated 20 April. The breach, disputed by EuroDNS, involves the domain name facebok.com, that a WIPO Panel ordered to be transferred to Facebook, the complainant. However EuroDNS finds themselves caught between a rock and a hard place with a court case initiated in their own country, Luxembourg, preventing them from doing so. And accusing ICANN of not responding to issues raised in the case before slapping them with the breach notice.
The facts in the case do not seem simple. On the day of the WIPO decision, both EuroDNS and the complainant of the UDRP were served summons to appear in front of the Luxembourg civil court. In serving EuroDNS with their breach of the RAA, ICANN have not taken notice of this summons and even ignored earlier emails - which included said summons - sent by EuroDNS to ICANN's Compliance department.
The court papers said that the Respondent to the UDRP, Franz Bauer, had stolen the domain name from them and asked for a local judge to prevent EuroDNS from transferring the domain name to anyone until the ownership of the domain name can be decided. This case is still pending and each party is currently submitting their pleadings to the court.
"EuroDNS is a respected member of the ICANN community and has always scrupulously abided by ICANN Policies," said Luc Seufer, EuroDNS's acting general counsel. "This case is no exception as, contrary to what ICANN's letter implies."
The implementation of the UDRP decision was initiated the day after EuroDNS's receipt of the WIPO email advising them of the decision. So EuroDNS appears to have been caught between a rock and a hard place - they do not want to be in breach of their RAA and "obviously have no interest in blocking a rightful transfer nor impeding a WIPO decision" said Seufer.
EuroDNS now finds themselves in what they consider "an incredible position where if [they] transfer the name before the judge's ruling [they] will be accountable in [their] own country and if [they] don't transfer the name [they] are in breach of the RAA.
EuroDNS has informed ICANN, WIPO and the Complainant of these facts. In an email dated 31 March ICANN advised EuoDNS they would "have the document translated and reviewed for compliance with priority". The document (court papers) to be translated were in French, being the national language of Luxembourg, and ICANN advised they would respond to EuroDNS. But according to EuroDNS, there has been no communication since this email of 31 March and then being advised they were in breach of their RAA on 20 April. In addition, no mention is made in the letter from ICANN advising of the breach, nor to the court papers ICANN acknowledged receiving.
From EuroDNS's point of view, they are prevented from finalising the implementation of the UDRP decision. But they did initiate the process and the complainant's counsel was even sent the Authcode for the proper transfer, as soon as EuroDNS could implement the WIPO decision.
The sole reason why the transfer has not yet taken place is to allow for the civil court of Luxembourg to deliver their ruling. Indeed the lawsuit did not come from the respondent per se, but considering it came from someone alleging fraud and impersonation, and asking a judge to prevent EuroDNS from allowing this asserted offense to continue. EuroDNS is in a difficult position to allow them to make a decision.
EuroDNS confirmed to us they are prepared to abide by the UDRP decision rendered by the WIPO Panel. However the question remains: should EuroDNS simply ignore a court case against them in their own country?