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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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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
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
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All you do is change the root.cache file and your done! TLD's that people can actually vote on.
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?