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[Updated] ICANN Sends Breach Notice to EuroDNS Over Facebook UDRP

ICANN threatens EuroDNS if it fails to transfer domain name to Facebook.

ICANN has sent a Notice of Breach (pdf) to popular European domain name registrar EuroDNS for its failure to transfer a client domain name after an adverse UDRP decision.

In September 2010 a EuroDNS client lost a UDRP for Facebok.com (with one ‘o’), which is certainly a common typo for the popular social network. As of today the domain name is still in the client’s hands. It forwards to a page offering a “Facebook survey”.

Domain name registrars have ten days to transfer a domain name after receiving communication from the UDRP provider of an adverse decision unless the respondent files a lawsuit over the domain name.

In this case it’s about six months late.

This may be a case of a domain slipping through the cracks, although ICANN says it:

had multiple communications with EuroDNS on 31 March 2011, during which time ICANN informally encouraged EuroDNS to comply with the Panel decision and warned EuroDNS of the consequences of not doing so.

EuroDNS has 15 days to cure the breach.

[Update: EuroDNS has released the following statement]

As you know, EuroDNS is a respected member of the ICANN Community and has always scrupulously abode by ICANN Policies. This case is no exception as, contrary to what the letter implies. Furthermore please also know that the implementation of the UDRP decision was initiated the next day of our receipt of the WIPO email. We indeed do not want to breach and obviously have no interest in blocking a rightful transfer nor impede a WIPO decision.

Now, where it gets complicated – and what ICANN surprisingly does not mention in their letter – is that, on the same day, both we and the complainant of the UDRP were served summons to appear in front of the Luxembourg civil court. The court papers said that the Respondent to the UDRP has stolen the domain name from them and asked for a local judge to prevent us from transferring the domain name to anyone until the ownership of the domain name be ruled… This case is still pending and each party is currently submitting their pleadings to the court.

We are therefore in an incredible position where if we transfer the name before the judge’s ruling we will be accountable in our own country and if we don’t transfer the name we are in breach of the RAA.

We have informed ICANN, WIPO and the Complainant of these facts and ICANN specifically told us in an email dated March 31st they would « have the document translated and reviewed for compliance with priority» (French being the official language in Luxembourg) and get back to us. The public letter published last night is the first time we heard back from ICANN ad as you can see no reference is made to our exchange with them nor to the court papers which they did acknowledge receiving. Maybe ICANN is lacking a translator?

While we were prevented to finalize the implementation of the UDRP decision, we did initiated this process and the complainant’s counsel was even sent the Authcode for the proper transfer, as soon as we could handle the WIPO decision. The sole reason why the transfer has not taken place yet is to allow for the civil court of our country to render 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 us from allowing this asserted offense to continue, it is quite difficult for us to make a decision.

Now considering ICANN late notice, the easy thing to do would be to abide by the UDRP and we are obviously prepared to do so as we always were. Nevertheless, the question remains : should we simply ignore a judiciary court case against us in our own country – that could prevent us from operating the transfer since it is was asked of the judge – because of our RAA’s obligations ? We would gladly do so, but ICANN needs to make their choice crystal clear, after having -this time – read all the relevant documents.

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  1. EuroDNS says

    As you know, EuroDNS is a respected member of the ICANN Community and has always scrupulously abode by ICANN Policies. This case is no exception as, contrary to what the letter implies. Furthermore please also know that the implementation of the UDRP decision was initiated the next day of our receipt of the WIPO email. We indeed do not want to breach and obviously have no interest in blocking a rightful transfer nor impede a WIPO decision.

    Now, where it gets complicated – and what ICANN surprisingly does not mention in their letter – is that, on the same day, both we and the complainant of the UDRP were served summons to appear in front of the Luxembourg civil court. The court papers said that the Respondent to the UDRP has stolen the domain name from them and asked for a local judge to prevent us from transferring the domain name to anyone until the ownership of the domain name be ruled… This case is still pending and each party is currently submitting their pleadings to the court.
    We are therefore in an incredible position where if we transfer the name before the judge’s ruling we will be accountable in our own country and if we don’t transfer the name we are in breach of the RAA.

    We have informed ICANN, WIPO and the Complainant of these facts and ICANN specifically told us in an email dated March 31st they would « have the document translated and reviewed for compliance with priority» (French being the official language in Luxembourg) and get back to us. The public letter published last night is the first time we heard back from ICANN ad as you can see no reference is made to our exchange with them nor to the court papers which they did acknowledge receiving. Maybe ICANN is lacking a translator?

    While we were prevented to finalize the implementation of the UDRP decision, we did initiated this process and the complainant’s counsel was even sent the Authcode for the proper transfer, as soon as we could handle the WIPO decision. The sole reason why the transfer has not taken place yet is to allow for the civil court of our country to render 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 us from allowing this asserted offense to continue, it is quite difficult for us to make a decision.

    Now considering ICANN late notice, the easy thing to do would be to abide by the UDRP and we are obviously prepared to do so as we always were. Nevertheless, the question remains : should we simply ignore a judiciary court case against us in our own country – that could prevent us from operating the transfer since it is was asked of the judge – because of our RAA’s obligations ? We would gladly do so, but ICANN needs to make their choice crystal clear, after having -this time – read all the relevant documents.

  2. Ed Muller says

    By claiming theft and forcing a local jurisdiction to make a decision, ICANN would have to deal with the local court’s ruling. In essence, regardless of all other rights hefted by ICANN, the case could center around a citizen’s rights and not something called UDRP which could be perceived in some countries of depriving individuals of due process.

  3. Bret Moore says

    Is there a “loser pays” provision in Lux law, such that if this is a bogus scheme to hold up or stop the UDRP transfer (like if it’s the Respondent’s business partner who is suing), could the court assess damages for abuse of the court system on the plaintiff?

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