Tuesday, October 28, 2008

Sarasota Realtor’s MLS Domain Name Transferred by Network Solutions Despite Filing of Lawsuit

I previously blogged (here) about the lawsuit filed by Sarasota Realtor Marc Rasmussen in an effort to keep his domain name http://www.thesarasotamls.com/ following a split decision by an arbitration panel which ordered his domain name to be transferred to the Sarasota Association of Realtors (“SAR”).

Unfortunately, due to some carefully crafted language in ICAAN’s Uniform Domain Name Dispute Resolution Policy (“UDRP”), the lawsuit was unable to stop the transfer of the domain.

The Herald Tribune ran an article yesterday (link here) about the lawsuit which noted that as of Tuesday, October 21, 2008, the domain name had been transferred to SAR by domain registrar Network Solutions (based in Virginia) despite Rasmussen’s filing of his lawsuit in the U.S. District Court in for the Eastern District of Virginia. See Rasmussen v. Sarasota Association of Realtors, Inc., Case No. 08-cv-00954 (E.D. Va. September 15, 2008).

Apparently, on October 17, Network Solutions notified the parties by e-mail that the domain name would remain locked pending the outcome of the litigation. The same e-mail also noted that the proper jurisdiction for the lawsuit under the UDRP was either Sarasota (Rasmussen’s domicile) or Virginia (Network Solution’s domicile).

SAR countered by arguing that Rasmussen’s lawsuit had been filed in the wrong jurisdiction, and thus could not stop the transfer of the domain name. Multiple e-mails were exchanged back and forth among the parties, the UDRP arbitrators, and Network Solutions. Lawyers for the National Arbitration Forum (the arbitrator of the UDRP action between Rasmussen and SAR) told Network Solutions that its position on jurisdiction was incorrect because while there are indeed two proper jurisdictions for a lawsuit to block the transfer, the choice of jurisdiction is actually up to the complaining party, in this case, SAR. Thus, because SAR had chosen Sarasota for its jurisdiction, that was the only proper place for a complaint to be filed to stop the domain name transfer. By Tuesday, Network Solutions had turned control over the domain over to SAR, which immediately began redirecting web traffic to its own website.

In order to understand what happened, one must understand certain parts of ICAAN’s Uniform Domain Name Dispute Resolution Policy (“UDRP”) as well as ICAAN’s UDRP Rules (“Rules”).

Paragraph 4(k) of the UDRP describes the circumstances under which the domain registrar agrees to enforce a decision by a UDRP arbitration panel:

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.

Paragraph 3(b)(xiii) of the Rules, which describes the jurisdictional statement that all UDRP complainants must have in their UDRP complaints, reads “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”. Paragraph 1 of the Rules defines “Mutual Jurisdiction” as “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.”

Thus, at the time SAR filed its UDRP action against Rasmussen, SAR’s complaint had to elect to submit to the jurisdiction of the court in at least one of the available jurisdictions (in this case, either Network Solution’s Virginia domicile or Rasmussen’s Sarasota domicile).

However, because Rule 3(b)(xiii) only requires a complainant to submit to “at least one” of the jurisdictions, SAR likely elected in its complaint to submit itself only to the jurisdiction of Sarasota (and not even mentioning Virginia). Thus, when it came time for Network Solutions to enforce Paragraph 4(k) of the UDRP, that provision explicitly required that the lawsuit against the complainant be filed in a jurisdiction to which the complainant submitted in its complaint. Since Rasmussen’s complaint was filed in Virginia and SAR had submitted to Sarasota, the lawsuit was insufficient to prevent Network Solutions from transferring the domain name.

Rasmussen has said he will continue the fight to get his domain name back. He has his own blog post on his current web site (link here) regarding the ongoing development in the case.

3 comments:

John Sabia said...

Thanks for the explanation. I understand the court system and using legal maneuvers to win no matter how unscrupulous they appear. However, It does nothing for reputation management. This will be a much harder battle to win.

Gerry Thomasen said...

Excellent post - it's great to see an informed perspective on what happened. Thanks for doing the homework for those of us who are interested and confused.

Mike Bates said...

I can't believe Sarasota's board of realtors got away with it. Seems like outright theft.