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Study of Domain Dispute Resolution System
yooden writes: "Milton Mueller shows in his study that the domain name dispute resolution system applied today has a tendency to reward providers who deliver name transfers (ie. WIPO). While the idea is not new, the study is." Since ICANN is meeting today, in a session with 10 totally unelected directors and 9 elected by business representatives and 0 elected by general internet users, to decide which new TLDs will be implemented and how (to split up the loot), it seems somehow appropriate to review their record of fair and impartial domain name handling over the past few years. Mueller analyzes disputes statistically and comes up with a few smoking guns.
I didn't realize that there were multiple resolution boards, and it was interesting to see that WIPO and NAF were close to 80/20 in "complainant wins" to "respondent wins" cases, whereas eResolutions was closer to 50/50, which, IMO, is a more realistic expectation of a fair system. I also like the idea suggested that the specific board that is used should be decided by the domain name registering company, as opposed to the initiator of the complaint. Yes, that might mean that WIPO and NAF would have no more cases and one or two registrars would be loaded big time, but it shows that there is a problem in consistancy across the current system.
One stat that I wish was cataloged was exactly the types of complaints vs wins and losses. For example, differing "typographical differences" from "trademark words" from "trademark variations" (e.g., "guines.com" vs "guiness.com" vs "guiness-sucks.com"). In addition, a breakdown of how the contested site was being used would be good too, if it was empty or activitely used or otherwise. I would figure the fairness issue would be highlighted strongly here.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
Message to WIPO & ICANN from WIPO.org.uk (SWIPO.org)
.REG or similar. What you are doing is unlawful.
WIPO & ICANN care nothing for the LAW:
Ask any trademark attorney about the proper use of a trademark. It has to be set apart by special typeface or script. And use "tm" for an unregistered mark and "®" for a registered mark.
The Domain Naming System (DNS) encompasses all words - it is NOT a Trademark System (ask Paul Mockapetris, creator of Domain Name System).
ICANN - this means you cannot have a dispute resolution that does not include a tag - i.e.
Guide to European Competition Law
2. Abuses of dominant position (Article 82)
Article 82 prohibits the abuse of the dominant position of a company which negatively affect the trade between Member States.
2.2. What are the prohibited practices under Article 82?
c) Abuse of intellectual property rights
The mere existence of a patent, trademark or copyright is not sufficient to establish a dominant position.
WIPO - this means you cannot pass on these names, only one may use it, else you are giving trademark a dominant position on the Internet. Many others may have the name trademarked also. Have you not heard of "Unfair Competition" laws? What you are doing is unlawful.
I liked the group's listing of specific cases (near the end of the study), showing decisions that were apparently incompatible with the official resolution policy.
Rubbing ICANN's nose in badly-followed official doctrine, citing their own chapter and verse, may be effective, or it may just make things worse, though.
WIPO D2000-0054
4(a)iii - Ruling goes beyond ICANN policy, attempting to make secondary markets in generic domain names illegal if the generic term happens to be trademarked. Faced with the absence of any real bad faith, the panelists concocted a "preclusion" doctrine that holds that prior registration of a name constitutes bad faith under 4(b)ii of the policy because it prevents the trademark holder from having the name. Since domain name registrations are by definition exclusive, this could be used to justify bad faith for any name a trademark holder wants.
WIPO D2000-0479
4(a)i - The trademark involved was "Tata & Sons." The panelist stretched the definition of "confusingly similar" well beyond the breaking point.
NAF FA0093763
4(b)i, 4(a)ii - Bad faith finding based on holding that respondent registered name intending to sell it to complainant, despite absence of any evidence of an offer and despite fact that the domain was sold in 1997 to a different party with a bona fide business plan to use the name for email addresses.
WIPO D2000-0996
4(a)i - Bad faith and no rights were proved, but the panelist's finding that the domain name was "confusingly similar" to the trademark "Guinness" is insupportable.
WIPO D2000-0505
4(a)ii, 4(a)iii - Respondent used name for bona fide offering of services but panelist asserted that "some rights are better or more legitimate than others." Panelist also adopted bizarre "preclusion" concept advanced in crew.com to manufacture a bad faith finding.
WIPO D2000-0376
4(b)i - A generic term trademarked by a German company that already had the country-code version of the name. Panelist's decision seems to have been driven mainly by his irritation with the respondent's behavior. Took 4(b)i to new heights of absurdity by holding that failure to respond to an offer to buy the name for $100 proved that a higher price was demanded.
NAF FA0094388 (In post-udrp litigation)
4(a)iii - Another ruling that completely ignored the bad faith requirement of the policy in order to take away a generic domain name from a domain reseller and give it to a trademark holder
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For the most part domain names are nothing more than a convenience. How ofter do you go to a site based on its domain name? 99.9% of the time, I end up finding out about a site because of a link somewhere, or from a search engine. Sure, a catchy name is nice, but it isn't that big of a deal.
I was at a cafe on Halloween sitting across from a fellow working on a laptop. He eventually made some conversation and informed me that he was a domain name speculator. He had a list of thousands of domain names he had for sale. Most of them were (East) Indian words for sex, and he was selling them for between $500-$5000. He figured that as soon as India joins the information age, all sorts of tycoons are going to want these domain names, and they will be willing to pay big bucks for them.
I had a hard time not laughing out loud at him.
I think his point is that everyday words are being taken away from people who should legitimately have a right to register them as domains, provided they aren't doing so to enter into competition with a corporation that has obtained a trademark on that word. His example of Penguin the publishing company is a good one. If I were to register penguin.com and sell stuffed penguins, or put up pictures of penguins, or some other such thing, Penguin publishing would likely be able to have the domain taken away from me simply because they own the trademark on the word Penguin. Now, trademarks are normally only valid in connection with a certain business or industry. This is why Apple Computers and Apple Records can coexist. There are some cases though where a trademark becomes sufficiently "famous" that it is considered to transcend all boundaries and nobody but that corporation can use the word in connection with anything forevermore. McDonald's is a good example of this. If my name were John McDonald, and I were to register McDonaldsWebDesign.com, I would likely be sued by the McDonald's Corporation and have the domain taken from me, if past dispute decisions are any guide.
Trademarks were originally created so that companies couldn't compete unfairly with other companies by giving their product the same name, or by taking the name of a well-known brand and trying to cash in on it by associating it with their products or services. It's intended to prevent fraud and consumer confusion. It seems to have gone well beyond that now. Trademark infringement is now being used to squash free speech. Corporations regularly alledge that someone has infringed on a trademark simply by mentioning it in the course of criticizing that corporation. Receiving threatening letters and being faced with an expensive lawsuit (win or lose it will likely be very expensive) is often more than enough to scare people into silence. Even if they know they are in the right, you can look at many cases these days where the trademark owner wins regardless of whether we think they were in the right. The report shows that the overwhelming majority of domain dispute decisions are made in favor of the trademark owner. Corporations also seem to feel that they can trademark everyday words and prevent anyone from using the same words in association with their products, even when the other company or individual are not competing with the trademark owner. US courts have traditionally handled such disputes. But now, when it comes to domain names, we are bound by unaccountable, unelected governing bodies that seem to heavily favor corporate interests.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Of course, when others tried to do this, the big companies complained that this would throw the Internet into chaos - presuamably meaning they could not control the assignment of TLDs and thus get first dibs on prime names by knowing first what will be available.
However, if Internet users at large created a new TLD authority and open-source, open-license software that was reliable augmentation to DNS & BIND, then some serious alternative to centralized registry authority could be put forth.
The system could simply allow arbitrary TLDs, presumably bounded by a character limit, and domain names on a first-come, first-serve basis. The system would be distributed in a GNUtella-like fashion, and name conflict resolution would be performed by timestamp comparison.
Of course, this is just one idea, and a preliminary description of it... but there are only three other alternatives: whine uselessly, a class action lawsuit (if some lawyer thinks they can win the case, and in what country?) or form a lobby on behalf of general Internet users to try to change what ICANN is doing...
o/~ we are pissed, we are pissed, we have to resist... o/~ - ec8or
Wouldn't this just result in Mr. Aol and Ms. First Post being elected to the board? Do we really want the average internet user, (or even the average slashdot user now-a-days) to be making this type of decision?
"You must do the thing you think you cannot do" E.Roosevelt
This pretty much confirms what we've all come to know about the UDRP - that it rewards the big guy. While there are some cases where the little guy wins, it seems that with the high number of cases where the complainant wins, that someone who rightly holds a domain can lose it without just cause.
One of the more disturbing aspects of this report is the RDNH report - that is, reverse domain name hijacking claims. In the ones listed, I counted only 3 - *3*! - that were even considered. This means that if you lose a domain under UDRP, the chances of getting it back if you had it legitamitely are nil.
The system is quite obviously broken. So how do we fix it? I would argue that not even having regular Internet users elect the panelists would help. Unfortunately, our Internet has become the new playground of the corporates, and all those things we used to love and take for granted are gone.
Ah, to be able to take the Internet back to 1996 or earlier, back when banner ads were considered the devil's tool, pages were fairly small by comparison, and the SNR was still high...
You elect the people who created the TCP/IP standard every time you send a packet. You elect Tim Berners-Lee (the creator of HTTP, right?) every time you view a web page. You elect the C++ guy or C guys (Dennis Ritchie and Ken Tompson?) or Sun every time you write a program in their language(I elect Larry Wall!).
You can choose to be in or out of those standards, but domain name resolutions are legally binding whether you believe in ICANN or not.
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Why can't I moderate something "Wrong" or at least "Grossly Misinformed"?
http://www.opennic.unrated.net
I have a feeling this is going to get really big.
----Clip from the Site----
The OpenNIC is a user owned and controlled Network Information Center offering a democratic, non-national, alternative to the traditional Top-Level Domain registries. In case you were looking for them, the traditonal TLDs are currently served by Network Solutions with policies set by ICANN
----End----
All you do is change the root.cache file and your done! TLD's that people can actually vote on.
I can't help but wonder what is stopping these companies from filing civil suits against the defendants in these cases.
If you look at the Etoy vs Etoys case that played out last year you can draw some interesting (prehaps unfounded) conclusions. I saw a lot of prople here that were very skeptical about Etoys' timing, bringing the suit in the fall and then reaching an agreement right after christmas.
Having a District Court aprove an injunction before arbitration may very well become a tactic employed by plaintifs who know they have the ability to litigate above and beyond the financial resources of the defendants. I have yet to see anything in these arbitration schemes that will stop this.
Can anyone else provide more insight to this? I really hope I just overlooked something.
And what was with that company which wanted both ".kids" and ".sex"? That's a blatant case of pedophilia.
As far as the abuse of TLDs goes, I agree. Doubleclick.net should be doubleclick.com; since they only bog down sites with banner ads, they are providing a corporate disservice, rather than an Internet service. Collegeboard.org should be collegeboard.com; they're definitely making outrageous profits on test fees, penalties, and the like. And (I just know I'm gonna regret this soon, but I have to say it) Slashdot.org really should be slashdot.com; since the only non-profit organization associated with Slashdot are the users; the Slashdot core has turned for-profit ever since the Andover.net buyout. Hey, andover.net, there's another example!
"Ancillary does not mean you get to rule the world." --U.S. Circuit Judge Harry Edwards, speaking to the FCC's lawyer
I suppose then that my chances of holding on to
ihatewipo.com are slim.
The problem with ICANN is that they dont have a open process, and there members are not selected by the populus.
Im a beleiver that either a republic, or a representitive democrarcy (where the people decide who makes the decisions) are superior to pure democracys (where the people make every little decision, and hasent existed in a large scale for centuries) primaraly because I think that most people neither have the time nor the inclination to make effective decisions.
If its a collection of self selected people ruling you, then the process has to be open. If the people in charge have been selected by the populus the process, there on, can be as closed as they want.
You either have to have open discussion, or open elections. ICANN has neither.
Domain names are like a language: Associating convenient labels with inconvenient stuff. Can you imagine if English was designed by a central words-to-idea-association dictating authority? Superinconvenient and eventually abandoned. How about having domain names determined by a P2P swarmy logic. Precedent and majority would rule, not political clout. No more domain squabbles. NO power to corporations. It would be easy too. Bandwidth? I would have a list of domain name - IP address associations. So would you. If I try to link to a domain not on my list then I can reference your list and update/addto my list from it; or one of my other peers. It works for spoken languages. Is this an old idea?