lawsuit started against NAF decision, but MONIKER told me to inform complainant? - DNForum - Domain Sales, Domain Forum, Domain Appraisals, Domain Registrars

**owndomain** · 05-15-2008, 12:10 PM

I have started a lawsuit against the complainant, to whom I have lost in a NAF decision, the registrar is Moniker.

I want to inform Moniker under UDRP, the lawsuit has been started, and ask Moniker not to transfer the domain as per the decision, but Moniker replied:

"Please be advised that Moniker.com must comply with the WIPO Decision and transfer ownership of the domain name after the 10 days have passed.

If you wish to pursue this matter legally, you must contact the complainant (not Moniker) and advise them as to how you are proceeding.

Moniker does not need to be sent any information regarding these proceedings. However, once a decision in this case is made you can forward that information to Legal@moniker.com."

They are kidding me?! How shall I do it now! Please help me, according to UDRP:

"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"

Acroplex · 05-15-2008, 12:18 PM

Escalate the matter by having your attorney file a temporary stay to the decision. Notify the NAF as well as Moniker.

**owndomain** · 05-15-2008, 12:23 PM

What is the temporary stay?

How to inform NAF and Moniker? By EMAIL and FAX, I guess it?

Thanks for your help!

Acroplex · 05-15-2008, 01:13 PM

You need legal representation.

**jberryhill** · 05-15-2008, 02:08 PM

Quote:

"Please be advised that Moniker.com must comply with the WIPO Decision and transfer ownership of the domain name after the 10 days have passed.

If you wish to pursue this matter legally, you must contact the complainant (not Moniker) and advise them as to how you are proceeding.

Moniker does not need to be sent any information regarding these proceedings. However, once a decision in this case is made you can forward that information to Legal@moniker.com."

Someone at Moniker screwed up. If you have filed in the appropriate mutual jurisdiction designated in the Complaint, Moniker is not permitted to transfer the domain name. You must provide Moniker with a copy of the filing, preferably stamped by the court. Since you did not mention the court in which you filed, or the mutual jurisdiction designated in the Complaint, then just what you might send them is something of a mystery.

The NAF is done. They just issue UDRP decisions. They have no authority to transfer a domain or to stop transfer of a domain.

**owndomain** · 05-15-2008, 06:54 PM

[quote=jberryhill;1458338]. Since you did not mention the court in which you filed, or the mutual jurisdiction designated in the Complaint, then just what you might send them is something of a mystery.
QUOTE]

I have started a lawsuit in court of Beijing, the location where the registrant is living.

I think I need to translate, email and fax the officail lawsuit filing receipt and our complaint, right?

monte cahn will read this post?

**jberryhill** · 05-15-2008, 08:51 PM

Quote:

I have started a lawsuit in court of Beijing, the location where the registrant is living.

That is not what I asked you.

Now, when you received the NAF decision, the email from Johnson/Schaber/Houle/Struffert, whichever case manager you had, would have had two attachments - the decision and notice of the decision. In that email, they remind the parties of what the mutual jurisdiction was.

The email either says:

Quote:

Attached is a copy of the decision from the Panel in the above referenced case.

Mutual Jurisdiction: Location of the Registrar

or the email says:

Quote:

Attached is a copy of the decision from the Panel in the above referenced case.

Mutual Jurisdiction: Location of the Registrant

It's the email that had the decision attached. What did it say?

Quote:

I think I need to translate, email and fax the officail lawsuit filing receipt and our complaint, right?

Yes - you need to get that to Moniker immediately - if it was filed in the right place.

Quote:

monte cahn will read this post?

No. You need to send it to legal@moniker.com.

What is your deadline?

**owndomain** · 05-15-2008, 08:59 PM

It says: Mutual Jurisdiction: Location of the Registrar

**jberryhill** · 05-15-2008, 09:07 PM

Quote:

It says: Mutual Jurisdiction: Location of the Registrar

Okay. The registrar is in Florida.

Let's take a look at that Rule 4(k) again shall we....

"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"

Do you see a problem here?

Now, here we get into a fairly complex point that a lot of people don't understand well. Imagine there had been no UDRP. Totally apart from the UDRP, the registrar is supposed to lock a name when there is any litigation in a court of competent jurisdiction. Just because the UDRP requires the complainant to identify one place, doesn't mean there might not be more places where there would be jurisdiction over the parties.

But if your intention was to use UDRP Rule 4(k), then you are in the wrong court.

**owndomain** · 05-15-2008, 09:13 PM

Thanks for your help!

So in this case, I will not mention UDRP. I will prepare all the legal documents and send it to moniker, the registrar?

I also printed out the whois of the domain name, Notarized.

I know there is another lawcase in China which is against WIPO.

**jberryhill** · 05-15-2008, 09:29 PM

Quote:

So in this case, I will not mention UDRP. I will prepare all the legal documents and send it to moniker, the registrar?

You can try, but Moniker doesn't have to lock the name if they do not believe the court in Beijing is an appropriate jurisdiction.

But your larger issue is that you are full of shit, and I am going to explain in detail that you are full of shit.

Let's take a look at this part of the decision:

http://domains.adrforum.com/domains/...ns/1159938.htm

Quote:

Further, the Complainant has provided evidence that the organization OwnDomains.com is in the business of registering domain names that point to commercial search sites. The Respondent has stated that this is not relevant, because its name is OwnDomain.com (without the “S” at the end) and it is not related to OwnDomains.com (with the “S” at the end).

But the Complainant has provided evidence showing that the physical address and E-Mail address of both OwnDomains.com and OwnDomain.com are the same. The Panel finds this evidence credible. Thus, despite the Respondent’s denial, the Panel finds that it is the entity behind the organization OwnDomains.com.

The Panel finds that the Respondent has attempted to mislead the Panel in at least two ways: by claiming that it never used the disputed domain name to point to a search site containing sponsored advertising links (some of which directly compete with services offered by the Complainant), and by claiming that it is not related to the organization OwnDomains.com, which is in the business of registering domain names precisely to use them to point to such search sites. Attempts to mislead the Panel may, in and of themselves, be indications of bad faith registration and use, see Morgan Stanley v. Meow, FA 671304 (Nat. Arb. Forum, May 15, 2006).

Okay, you said that you were owndomain.com, and that you had nothing to do with owndomains.com.

Now, anybody can look and see the whois for owndomain.com, and they can also see that owndomains.com is "Whois Privacy Protection Service Inc."

So, I took a look at the whois history at domaintools for owndomains.com and, sure enough, the admin contact was your email address, and the postal address was also your postal address, right up until April 24, 2008.

Now, why is that date important? Let's have another look at the decision:

Quote:

A timely Additional Submission was received from Complainant and determined to be complete on April 23, 2008.

A timely Additional Submission was received from Respondent and determined to be complete on April 25, 2008.

In other words, as soon as the Complainant called you on your bullshit, you switched the other name over to Whois Privacy, and then you lied about not having had anything to do with it.

I don't really care what the rest of the facts are. You tried to mislead the Panel, and then you come in here and waste everyone's time with your scheme to try to tie up the domain in court in China.

No sale, pal.

**CyrusL** · 05-15-2008, 09:35 PM

Owned by J-money--straight Philly style.

**owndomain** · 05-15-2008, 09:41 PM

NO, that is a different story.

**jberryhill** · 05-15-2008, 09:50 PM

Quote:

NO, that is a different story.

Oh really?

And the fact that the Internet Archive shows owndomains.com and owndomain.com resolving to the same site in 2005 is some kind of "not related"?

And it is just a cosmic coincidence that the day before you submitted your supplemental response, the WHOIS for owndomains.com just happened to switch from your admin and your address to "Whois Privacy"?

And the Panel just made up the part about you claiming that owndomain.com and owndomains.com are "not related"?

Okay, thrill me. Make this make sense to me.

**grahamhaynes** · 05-15-2008, 10:04 PM

Well said John - your assistance is much appreciated in these difficult and complex areas but honesty is a perquisite - Keep up the good work, the domain community needs people like you.

**harleyx** · 05-15-2008, 10:27 PM

I just read that NAF case link. That was a slam dunk and a half for Yahoo.

**Devil Dog** · 05-15-2008, 11:05 PM

oh snap, someone buy that man a philly cheesesteak samich....

**owndomain** · 05-15-2008, 11:16 PM

Quote:

Originally Posted by jberryhill

Oh really?

And the fact that the Internet Archive shows owndomains.com and owndomain.com resolving to the same site in 2005 is some kind of "not related"?

And it is just a cosmic coincidence that the day before you submitted your supplemental response, the WHOIS for owndomains.com just happened to switch from your admin and your address to "Whois Privacy"?

And the Panel just made up the part about you claiming that owndomain.com and owndomains.com are "not related"?

Okay, thrill me. Make this make sense to me.

Sorry, just be back!

First of all, thank you very much for your generous info to me on this case!

And I also think some words of yours needs to a little ....?

Followings are my personal words and cannot be treated as the evidence for legal purpose:
there are some reason which owndomains.com are changed, but, if we want to mislead the panel, we shall also change the address, phone number, fax number, right?

We are not lawyers ourselves, and English is also not our native language, perhaps we did not make everything clear in our response: But when you are facing a lot pages of which the whois information show owndomains.com, but the respondent is owndomain.com, will you need to point it out?

There are also some reasons I think we need to report it to court.

But again, we thank you very much for your generous information and help.

**jberryhill** · 05-15-2008, 11:46 PM

Quote:

And I also think some words of yours needs to a little ....?

A point well taken. There is no editing in the legal forum, and I have to get used to that.

Quote:

there are some reason which owndomains.com are changed, but, if we want to mislead the panel, we shall also change the address, phone number, fax number, right?

Not necessarily. You could have just done a bad job of it. My problem is the panel's impression that you had told them the two were "unrelated". Clearly there was some kind of relationship between these entities.

Now, I realize, and the commentator on it being a "slam dunk" should realize that UDRP decisions are always self-justifying. The papers filed by the parties are not available, so of course the panel describes the facts in a way that suits the outcome.

Still....

Quote:

We are not lawyers ourselves, and English is also not our native language, perhaps we did not make everything clear in our response:

That's your best bet on an excuse here.

You might have looked at the UDRP decision for yprog.com, and taken some inspiration from that.

Quote:

But when you are facing a lot pages of which the whois information show owndomains.com, but the respondent is owndomain.com, will you need to point it out?

I see what you are driving at, but it seemed to the panel went that you went well beyond pointing it out, to the point of denying that the two were related to each other in any way.

If the address and email are the same, then whether the registrant of one name is Hu Dik Ho and the other registrant is Lee Kee Wang, then you're going to have to explain why these "unrelated" parties have the same contact info and have historical resolved both names to the same website. That's not very "unrelated" if you ask me.

The capper, though, is that you went well beyond pointing out a typographical error, and it strongly appears - by changing the whois data on April 24, which is right at the time this issue was relevant in the UDRP - that you were trying to change the facts.

I'm still not sold.

And make that steak a Wiz wit' n hots.

**owndomain** · 05-15-2008, 11:57 PM

Thanks for your post.

Next time (we hope there is no next time), we will find a capable lawyer (who is also good at English) to assist us.

We have made it too complicated....