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Re: [discuss] Notes - Names Council Meeting, San Jose - 062599

A dispute policy can easily grant rights greater than what the law
requires, although not of course greater than what the law allows.

This is the essence of the dispute, complicated by the fact that "the law"
requires different things in different places.

On Mon, 28 Jun 1999, Kent Crispin wrote:

> On Mon, Jun 28, 1999 at 10:29:11PM +0000, William X. Walsh wrote:
> > >
> > >And indeed, that is precisely what is contemplated in the WIPO 
> > >recommendations.  They *never* take precedence over law.
> > 
> > What about when they grant rights greater than what the law allows?
> Hypothetical: WIPO writes a report granting you the right to rob
> banks.  That is indeed a greater right than the law allows.  ICANN
> follows that recommendation, and puts in the registrar agreement that
> you have the right to rob banks.  Do you think you now have the right
> to rob banks?  Do you think the courts and the police will now grant 
> you immunity from prosecution when you attempt to carry out your 
> robbery?
> I didn't think so.
> Similarly, the WIPO report cannot, in principle, grant rights greater
> than what the law allows. 
> Furthermore, the WIPO report, last time I looked, explicitly stated
> that its recommendations don't supersede local law, and that a
> complainant would always have the option of taking their case to
> court. 
> > Or support claims that do not meet the standards of proof?
> Aside from the fact that I don't think there is any such thing in the 
> WIPO report, which standards of proof are you talking about?

A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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