The dispute was over the right to the internet domain name “renner.com”. The applicant, Lojas Renner S.A., operates a number of retail department stores in Brazil and owns the registered trademark “Renner”, while the respondent, Tucows.com, is a Canadian domain name registrar which purchased the domain name “renner.com” in 2006 and is the registrant of that domain name with the internationally-recognized non-profit organization, the Internet Corporation for Assigned Names and Numbers (“ICANN”).   Lojas Renner S.A.’s motion to set aside service ex juris of  Tucows.com statement of claim and to stay the action for want of jurisdiction was granted. The Ontario Court of Appeal unanimously allowed Tucows.com’s appeal. The Court of Appeal for Ontario held that Ontario had jurisdiction over the dispute, finding that a domain name is personal property and that presence-based jurisdiction is established if the plaintiff’s servers are physically located in Ontario.

Lojas Renner S.A. unsuccessfully sought leave to appeal on the following issues:

• Whether the Court of Appeal erred in stating that the policy of the UDRP is to “refer” legitimate disputes to the Court?
• Whether the Court of Appeal erred in holding that the Superior Court of Ontario’s jurisdiction was “unlimited and unrestricted”?
• Whether the Court of Appeal erred in making no assessment of whether the claim before it was justiciable?
• Whether the Court of Appeal erred in determining in the abstract that a domain name was “personal property in Ontario”?
• Whether the Court of Appeal erred in failing to consider whether it accords with principles of order, fairness and comity to read “intangible” into Rule 17.02 – Rules of Civil Procedure, R.S.O. 1990, Reg. 194, Rules 17.02(a), 17.06(1).

I previously wrote a case comment about this important internet jurisdiction case: “The Internet as Property: The Implications of Tucows.Com Co. v. Lojas Renner S.A., and SOPA”, The Globetrotter, OBA International Law Section Newsletter, Volume 16, No. 1 – December 2011 [pdf].

Filed under: assumed jurisdiction, conflict of laws, copyright, cyberlaw, cyberspace, cybersquatting, Dispute Resolution, intangible property, intellectual property, lis pendens, litigation, parallel proceedings, Supreme Court of Canada, Tucows.Com Co. v. Lojas Renner S.A. Tagged: Canada, Civil procedure, Court of Appeal, Court of Appeal for Ontario, Domain name, ICANN, Ontario, Supreme Court, Supreme Court of Canada, Tucows, Uniform Domain Name Dispute Resolution Policy ]]> http://thetrialwarrior.com/2012/05/24/supreme-court-of-canada-denies-leave-in-domain-name-dispute-case/feed/ 0 thetrialwarrior http://thetrialwarrior.com/2012/05/23/chanakya-sethi-beyond-irwin-toy-a-new-approach-to-freedom-of-expression-under-the-charter/ http://thetrialwarrior.com/2012/05/23/chanakya-sethi-beyond-irwin-toy-a-new-approach-to-freedom-of-expression-under-the-charter/#comments Wed, 23 May 2012 14:49:05 +0000 Antonin I. Pribetic http://thetrialwarrior.com/?p=3903 ]]> Chanakya Sethi, Student-at-Law (Osgoode Hall Law School – York University) has posted “Beyond Irwin Toy: A New Approach to Freedom of Expression Under the Charter”,  Appeal, Vol. 17, pp. 21-45, 2012. The abstract reads:

The Supreme Court of Canada has struggled for more than two decades to resolve the inherent tension in its expansive interpretation of freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms with the high standard of justification that limits on that right must satisfy under section 1. The Court’s attempts have not assuaged critics who point to a continuing methodological anarchy in the Court’s jurisprudence. Despite ample criticism, however, little has been said in the way of proposed alternatives. This paper is an attempt to fill that void.

The author proposes an approach to section 2(b) adjudication that begins by animating the normative judgement latent in the Court’s jurisprudence: When not all expression is equally worthy of protection, not all expression should be equally protected. The foundation of this methodology lies in a purposive analysis of section 2(b), with an inquiry as to which categories of expression lie at the core of the guarantee and which lie farther afield. Those forms of expression closest to the core should be subject to the strictest form of scrutiny under section 1, while those outside the core should be subject to attenuated standards of review. Crucially, these distinctions must be evidenced by explicit tiers of scrutiny.

The proposed approach yields important benefits that address the specific criticisms levelled at the Court’s current methodology, including clarity and predictability, prudential limits on the flexibility the Court affords itself, and a more efficient use of the Oakes test, especially its third branch. Though the full impact of the proposed methodology is beyond the scope of this paper, the approach’s implications are most clear in the realm of political expression, where several of the Court’s recent precedents would likely have been decided differently.

Download a pdf copy of the article via SSRN here.

Kedar S. Bhatia (Student-at-law, Emory University School of Law) has posted  ”Reconsidering the Purely Jurisdictional View of the Alien Tort Statute”, Emory International Law Review, 2013, forthcoming/Emory Public Law Research Paper. Here’s the abstract:

The Alien Tort Statute is a remarkable provision. This thirty-three word statute lay dormant for nearly two centuries but now allows federal courts to hear claims for violations of the law of nations stemming from behavior anywhere in the world. Such an extraordinary interpretation was far from inevitable and remains on unsteady footing.

This article argues that the Statute should be read as purely jurisdictional, rather than as a hybrid provision granting both jurisdiction and a cause of action. In contrast to the current hybrid model, a strictly jurisdictional view of the Alien Tort Statute would provide a manageable framework for expanding the scope of the statute. Rather than requiring courts to first measure the specificity of international law and then gauge the practical consequences of recognizing a new cause of action, the jurisdictional view would require Congress to make those difficult, complex, and weighty policy decisions. A purely jurisdictional view of the statute adheres more closely to well-established views toward federal common law and also patches many of the problems that have arisen in applying the statute.

Download a pdf version of the article via SSRN here.

Related articles

• SCOTUS grants cert. in ATS case: Kiobel v. Royal Dutch Petroleum (thetrialwarrior.com)
• Murray et al., Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel” (thetrialwarrior.com)
• Corporate Liability under International Law: U.S. and Canadian perspectives (thetrialwarrior.com)
• Corporate liability under the Alien Tort Statute (professorbainbridge.com)
• Another Decision of Interest on the Alien Tort Statute: Flomo v. Firestone (7th Cir.) (lawprofessors.typepad.com)
• Alien Tort Statute Development (druganddevicelaw.blogspot.com)
• Bellia and Clark on Kiobel v. Royal Dutch Petroleum and the Alien Tort Statute (volokh.com)
• Supreme Court Orders Reargument in Alien Tort Statute Case (legaltimes.typepad.com)
• Keitner on Corporate Alien Tort Cases (lawprofessors.typepad.com)
• Supreme Court Eyes Scope Of Controversial Alien Tort Statute (forbes.com)
• Contemporary Practice of the United States Relating to International Law: Brief Note by John R. Crook (westphaliaxxi.com)
• Extraterrritoriality Becomes Focus of Kiobel Supreme Court; Are We Headed for Morrison II? (internationalpractice.org)
• SCOTUS for law students: Torture and jurisdiction (sponsored by Bloomberg Law) (scotusblog.com)
• SCOTUS decision in Mohamad v. Palestinian Authority (lawprofessors.typepad.com)
• More Kiobel Coverage (lawprofessors.typepad.com)
• Alliance for Justice Releases Report on Human Rights Case To Be Argued Before Supreme Court (yubanet.com)
• Ogoni vs Shell: US Supreme Court to re-hear case (vanguardngr.com)
• High court to deliberate on whether rights groups can sue companies for atrocities (foxnews.com)
• The AM Roundup: Holder’s Speech, Alien Tort, Biden Just Says ‘No’ (blogs.wsj.com)
• Justices Skeptical of Bringing Torture Cases to U.S. Courts (blogs.wsj.com)
• Court Seeks Reargument of Alien Tort Statute Case (volokh.com)
• Fourth Circuit Upholds “Derivative” Soveign Immunity, following the D.C. Circuit (internationalpractice.org)
• Argument recap: Downhill, from the start (scotusblog.com)

I can’t stand Flawging or Splawging (spam law blogging), but I genuinely detest Blog Scraping, including RSS scraping.

It is more than plagiarism.

It is intellectual property theft.

The Trial Warrior Blog is a personal law blog (blawg). I devote a significant amount of time and energy in writing posts for the benefit of my readers. It is NOT commercial speech or lawyer advertising and is in no way associated with my legal practice or my law firm.

I have previously taken a stand on this issue, which resulted in lawyerlocate.ca abandoning its RSS aggregator feed.

Today I noticed that one of my posts has been redirected by an RSS feed in violation of my copyright. The only exceptions are where I have authorized or consented to have my blawg being added to a RSS feed aggregator (e.g. Canadian Law Blogs List at lawblogs.ca because Steve Matthews had the courtesy to ask first) or the exclusive, non-transferrable license granted to Newstex to syndicate my blawg, for which I receive a nominal royalty which covers administrative costs associated with operating my blawg.

Here is the email text of my cease-and-desist notice and takedown demand to Mobispine AB, the owner of NewsAlloy.com, regarding breach of my copyright:

“Mobispine AB 

Mobispine SMS4PC 

To Whom It May Concern:

I am the owner of The Trial Warrior Blog: http://thetrialwarrior.com/.

According to the PR Web post dated May 11, 2012: http://www.prweb.com/releases/mobispine/newsalloy/prweb1108824.htm, your company has acquired NewsAlloy.com, the Web based feed reader.

Recently, I have noticed at least three redirects by newsalloy.com for this post:  http://newsalloy.com/redirect?url=http%3A%2F%2Fthetrialwarrior.com%2F2012%2F02%2F29%2Fmodel-law-not-common-law-governs-enforcement-of-foreign-arbitral-awards-in-ontario%2F

The following “Creative Commons Attribution-Non-Commercial-No Derivs 3.0 Unported License” copyright notice is prominently displayed on the main page of my blog:

Copyright Notice

This work is licensed under aCreative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.

You are in flagrant breach of my copyright.

I have neither consented nor authorized NewsAlloy.com to redirect, republish, or otherwise reproduce, in whole or in part, through the means of an RSS feed, the content of my blog. The NewsAlloy.com RSS redirect reproduces the entirety of my blog post, which is neither “fair dealing” under the Canadian federal Copyright Act, RSC 1985, c C-42, nor “fair use” under the U.S. Copyright law, title 17, U. S. Code.

I hereby demand that you immediately remove the RSS feed linking, redirecting or republishing the content of my blog.  If I do not receive written confirmation that you have complied with this cease-and-desist notice and takedown demand by no later than 5:00 p.m. (EST) on Monday, May 14, 2012, I will have no recourse but to commence legal action against and seek monetary damages and equitable relief.

Please govern yourself accordingly.

Antonin I. Pribetic”

Let’s see if and how they respond.

UPDATE:

I have subsequently modified my Creative Commons license to reflect the Canadian content of my blog as follows:

Copyright Notice

The Trial Warrior Blog by Antonin I. Pribetic is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 2.5 Canada License.

Lights! Camera! Action! Hosted by Steven Spielberg (Photo credit: Wikipedia)

The recent decision in Code Inc. v. Indepedent High Electoral Commission, 2012 ONSC 2208 (CanLII) ["Code Inc."] held that video conferencing is a viable option for the conduct of cross-examinations of foreign witnesses on a jurisdictional motion. 

In Code Inc., the Plaintiff moved to to compel two of the Defendants’ affiants, on affidavits filed on a forum non conveniens motion, to attend for their cross-examination in Ottawa or, alternatively, in London, England. While the decision suggests that the Defendants had not attorned to the Ontario court’s jurisdiction, it is unclear why the Defendants have not also moved for stay of the action based upon lack of jurisdiction simpliciter. 

The Plaintiff, a Canadian corporation with head offices in Ottawa, carries on business providing democratizing countries around the world with supplies and services required to conduct elections. The corporate Defendant, with head offices in Baghdad, administers elections in Iraq. The individual Defendant was a director of the corporate Defendant, also a resident of Baghdad. The Plaintiff sued for recovery of the balance allegedly owing (US$810,102) under a US$9.3M contract between the parties for the purchase of electoral supplies. Presumably, there was no forum selection or exclusive jurisdiction clause, although the reasons of Master Pierre E. Roger are silent on this point.

The Plaintiff argued that Baghdad is a “dangerous city with widespread risk of death and serious injuries to civilians, even within the Green zone (international military zone). Consequently, the Plaintiff is not prepared to allow any of its employees or any of its lawyers to travel to Baghdad.” (at para. 6)

 The Plaintiff suggested  cross-examinations be conducted in either Ottawa or London, England, at the expense of the parties with the issue of costs to be resolved on the forum non conveniens motion.  The Defendants proposed cross-examinations by video conference at the Defendants’ expense or, alternatively, if the Plaintiff insisted that the affiants attend personally in Ottawa, they suggested that the Plaintiff pay for the Defendants’ travel to Ottawa and required accommodation.

After comparing the estimated travel costs to Ottawa and London, Master Roger noted the Plaintiff’s objections to video conferencing, including the applicable factors in exercising the court’s discretion; namely:

a)      Complexity and volume of facts involved in the cross-examination.

b)      Logistics issues of video conferencing with language, time-zone, cultural and legal issues surrounding exhibits and private video conferencing in Iraq.

c)      Potential intimidation of witnesses more difficult to address during video conferencing.

d)      Defendants that are not impecunious and could pay for their travel with these costs dealt with at the motion. This to ensure that if the Plaintiff is successful at the motion it does not pay for costs in advance of the motion that it might not be able to collect from the Defendants (adding insult to injury considering the balance allegedly owing).

e)      Convenience is not an issue as the Defendants’ affiants are or were prepared to travel to Ottawa if their costs were covered.

f)        The Defendants have not provided evidence to support some of the allegations made in their factum (such as their crushing work load in Iraq and how it would negatively be impacted by their travelling to Ottawa) nor have they addressed how the video conferencing could actually be arranged in Iraq. (at para. 11)

Once again, there appears to be some analytical confusion regarding the issue of attornment in the context of a motion challenging jurisdiction:

[13]      The Defendants argue that on a forum non conveniens motion, when the Defendants have not attorned to the jurisdiction and are in fact challenging the jurisdiction of the Court, the Court has no jurisdiction to order a foreign defendant to travel to Ontario. They referred to four cases on jurisdiction which I have considered. Further, they argue on this motion that cross-examination by video conferencing is the most efficient and effective method of conducting these cross-examinations and that it would not be just or convenient in this case to order them to travel to Ontario. They point to factors that the Court should consider, see paragraph 12 of their factum.

A motion based upon forum non conveniens is normally brought in circumstances where the foreign defendant has either conceded that Ontario has a “real and substantial connection” to the subject-matter of the dispute, or to the foreign defendant (by presence-based, consent-based or assumed jurisdiction). In other words, attornment is irrelevant on a forum non conveniens motion.

With respect to the conduct of examinations of out-of-province witnesses, Master Roger notes that Rule 34.07 of the Rules of Civil Procedure provides for situations where the person to be examined resides outside Ontario.  The Master cites with approval the decision of Justice Newbould in Midland Resources Holding Ltd. v. Shtaif (2009), 99 O.R. (3^rd) 550 (at para. 9 and 20), on the applicable law and test:

Unlike when a person resides in Ontario, there is no prima facie right of someone who resides outside of Ontario to be examined where he or she lives. The test for determining the location of the examinations is what is just and convenient for both parties, based solely on the circumstances in each particular case. There is no prima facie right of either party with respect to the place of examination.

…….

As stated, it is conceded on behalf of the defendants that rule 34.07(1)(f) gives a court jurisdiction to order that the examination of a person who resides outside of Ontario be held by video conferencing. I agree with this interpretation of the rules.

Relying on rule  rule 1.04, which provides that “the Rules are to be construed to secure a just, most expeditious and least expensive determination and that proportionality is a factor to consider”, the Master concludes that there is no presumption for or against video conferencing. However, despite the territorial limitations in jurisdiction, even where a party is contesting jurisdiction, the court retains an inherent jurisdiction to control and regulate its processes to order a party to submit to cross-examination by video conferencing.