You can’t appeal a UDRP appeal, ICANN Ombudsman says
ICANN’s independent Ombudsman has called an Indian vaccine maker’s second Request for Reconsideration over a failed UDRP case a “misuse” of the Org’s appeals process.
Zydus Lifesciences lost its UDRP over the domain zydus.com earlier this year, with a finding of Reverse Domain Name Hijacking, then used the RfR process to try to get ICANN’s board of directors to overturn the WIPO decision.
The Board Accountability Mechanisms Committee dismissed the complaint because Reconsideration is designed for challenging ICANN’s actions and WIPO is not ICANN.
Zydus immediately filed a second RfR, calling WIPO “an extension of ICANN itself” and that BAMC’s inaction on the first RfR meant the case was now subject to the board’s jurisdiction.
In a rare intervention, Ombudsman Herb Waye poo-poos that notion, writing: “Decisions by the WIPO Panel in a domain name dispute are not sufficient basis for an RfR (hence the BAMC had no ‘jurisdiction’ other than the jurisdiction necessary to dismiss the Request).”
I feel that [the second RfR] has placed the BAMC in the awkward position of policing itself; hence perhaps, its hesitancy to summarily dismiss a Request concerning its own actions. A clear attempt by the requestor to appeal the decision in [the first RfR]. An unfortunate situation that, to me, amounts to misuse of this accountability mechanism.
He concluded that for the BAMC to consider the complaint would be a “waste of resources” and that it should be dismissed.
Zydus will still be able to appeal the UDRP in court, but that of course will be much more expensive.
RDNH loser files second appeal
A big drug company has appealed to ICANN for a second time over a Reverse Domain Name Hijacking ruling against it, claiming ICANN should be responsible for the decisions of the World Intellectual Property Organization.
India-based Zydus Lifesciences, which among other things makes Covid-19 vaccines, lost a UDRP complaint against the owner of zydus.com in June. To add insult to injury, WIPO made a RDNH finding against it.
Rather that go to court, Zydus filed a Request for Reconsideration with ICANN in July, but this was summarily dismissed because the Reconsideration mechanism only applies to the actions or inactions of the ICANN board or staff.
Now Zydus has filed a second RfR, in which its lawyers claim ICANN is responsible for WIPO’s UDRP decisions and failure to address the first RfR amounts to board inaction. The latest claim states:
when a dispute resolution service provider is accredited by ICANN to conduct mandatory administrative policy, as prescribed by the UDRP adopted by ICANN, such service providers are extension of ICANN itself
Zydus claims the WIPO panel erred by relying on what it claims were false and misleading statements by the zydus.com registrant. It wants the decision reversed and the three panelists forever barred.
I doubt the RfR will get anywhere. ICANN’s Board Accountability Mechanisms Committee is not about to make itself the de facto court of appeals for every UDRP party who thinks they got stiffed.
Covid vaccine maker takes RDNH loss to ICANN board
An Indian pharmaceuticals firm with a $2 billion turnover has complained at the highest level of ICANN after it was handed a Reverse Domain Name Hijacking decision over the .com matching its company name.
Zydus Lifesciences, which produces mainly generic drugs but last year earned government approval to manufacture a Covid-19 vaccine, says a UDRP panel “exhibited extreme bias” when it threw out its UDRP complaint against the owner of zydus.com last month.
The company had claimed the anonymous registrant was cybersquatting, but the WIPO panel instead found RDNH.
The panel was not convinced that the registrant should have been aware of Zydus’ existence when he registered the name in 2004, and said his use of the name — which it characterized as a fanciful five-letter generic — to redirect to various affiliate marketing sites was not “bad faith”.
But now Zydus is claiming that the panel ignored evidence that it was already a very large company, with a $110 million turnover, at the time of registration, and says the UDRP decision shows evidence of bias against developing-world companies. The latter card is played pretty hard.
I believe this is only the second time that a UDRP decision has been challenged with a formal Request for Reconsideration with the ICANN board of directors, and there’s a pretty good chance it will be summarily dismissed like the first one.
Zydus will probably have to sue, or pay up.
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