“ICANN thumbing its nose at the Court”, asks court to find ICANN in contempt: Receiver

Them’s fightin’ words!

Well this is getting interesting.

Earlier this month a Texas court ordered ICANN to stay a UDRP case for FunnyGames.com. ICANN responded by saying that it had no authority to stay a UDRP proceeding and that the court had no jurisdiction to order it to do so.

The court disagreed.

ICANN subsequently stated that it informed World Intellectual Property Organization — the UDRP provider where the case was filed — of the court decision. But it reiterated that it has no power to halt the proceedings.

In response, the receiver in the case writes regarding “ICANN thumbing its nose at the Court” and is asking the judge to find ICANN in in contempt:

“ICANN did not make even a good-faith attempt to comply with the Court Orders.

“ICANN has repeatedly argued (unpersuasively and incorrectly) that it lacks the authority to stop the ICANN UDRP. [Id.] Assuming, arguendo, that ICANN were correct and the Court simply misunderstood the law or forgot to review the ICANN declaration (as ICANN strangely suggests), were ICANN to instruct WIPO to stop the ICANN UDRP, WIPO would presumably disregard the instruction anyway. Thus, ICANN’s efforts in that hypothetical case would prove futile, but no harm to ICANN would occur.

“So, in an effort to show this Court a good-faith attempt to comply with the Court Orders, one would assume that ICANN would have simply sent a letter to WIPO instructing WIPO to stop the ICANN UDRP (and not care whether would WIPO would follow or disregard the instruction). But ICANN did not act in good faith. Instead, ICANN sent a letter to WIPO not instructing it to do anything, but merely “notifying WIPO of the Court’s order that ICANN ‘stay and abate’ the UDRP proceeding on www.funnygames.com.” [Docket No. 741, at Exhibit 1 (letter from ICANN to WIPO).]

“Furthermore, in the ICANN letter, ICANN also “requests” that WIPO keep ICANN informed of some items. [Id.] Can ICANN make a request [underlined] like that to WIPO without the authority to enforce [underlined] that request? Apparently, ICANN believes so! So, if that were the case, why couldn’t ICANN have likewise “requested” that WIPO stay and abate the ICANN UDRP? The answer is since ICANN wrongly believes it appropriate merely to respond to a Federal District Court, “I would prefer not to.” (See generally, Herman Melville, Bartleby, the Scrivener: A Story of Wall-street, Melville House Publishing, Brooklyn, Fresh York, 2010 reprint). This demonstrates ICANN’s failure to act in good faith and further supports why the Court ought to hold ICANN in contempt.”