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The UDRP: Is It Un-Fair.com?
typecast writes "A study of more than 3,000 UDRP decisions by a Canadian law prof. suggests that ICANN's domain-dispute resolution process may be even more unfair than Slashdot types already believe. This article says the study confirms organizations such as WIPO and the National Arbitration Forum decide most cases in favor of trademark holders. But it also says it's clear that individual arbitrators with strong "anti-cybersquatting" records are the ones most likely to be handed UDRP cases. A copy of the study and a minimal database of UDRP-panelist stats can be found at Geist's own UDRPInfo Web site."
Not to start a flame war here, but since the internet is global, and since laws aren't, some sort of Internatinal orginization with binding arbatration powers is needed to make sure that some one in Brazil or Burni can't get a copywrited name, or some one using the Colombia suffix .CO can't get Cnn.co or Slashdot.co (NEVER!).
Ben Spigel
Sic Transit Gloria
Sleep is for the weak!
Have you been into the moderator's crack again?
Haha! Lol!
/. feature of putting the domain name after any links... But this guy seems to have managed to sneak by it. I'm guessing (but too lazy to test) that he stuck the link in his .sig. I like that. Very impressive.
I was already beginning to appreciate and trust the cool new
The reason trademark holders win the vast majority of these domain name disputes couldn't possibly be because they deserve the name and the current holder has no reason other than cybersquatting to have it...could it?
I mean, hey, I know the every day average guy has no chance in hell up against a corporation when undergoing fast-track arbitration. And maybe I'm just not clued in to the majority of these cases, but if someone made a statement to me to the effect of "A guy named Joe Toledo bought the domain ford.com and now the car manufacturer wants it, who do you think should have it?" I'd be inclined to side with Ford. Because Ford has a trademark, much like an integral part of their corporate entity. Now, if you told me a guy named "Joe Ford" bought it, I'd say you've got a case. I'd be willing to bet that the vast majority of these defendants in domain name disputes don't have a reason other than profiteering to have these domain names and that's why they lose.
My sigs always suck.
Sorry if this opinion offends, but when I really resent jerks paying $35/year to register a domain and then extorting $200K out of some company. I'm tired of finding every domain name that I might want in the hands of some cybersquatter who has no intention of ever using or developing it. It reminds me of someone who buys up all of the plywood before a hurricane and sells it for $100/sheet to his desperate neighbors.
By Steven Bonisteel, Newsbytes
OTTAWA, ONTARIO, CANADA, U.S.A.,
20 Aug 2001, 8:12 AM CST
When did Canada become the 51st state? News to me!
--Xandu
That way, Joe Corporation can't nuke JoeCoSucks.com as easily by going to one of the "Trademark Friendly" arbitrators.
quis custodiet ipsos custodes - Juvenal
It seems silly. If someone cybersquats on a domain name that would obviously be used by a mega corp, they will get taken down in court. If someone squats on a domain where there is no corporation to fight them, ie: jesus.com, they can make millions. It is almost a double standard.
My real name is the same as a celebrity who has a awebsite, so I'll never have my own .com! What if my last name were McDonald's and I had a Family owned business that had been around for decades. I wouldn't be able to get a website with my business name, because some stupid restaurant got the domain name first...that sucks! I guess Gerald Ford was right...
My other sig is extremely clever...
if we treat them all identically? I mean, if Microsoft is the only entity legally entitled to microsoft.com, microsoft.co.uk, microsoft.ru, microsoft.biz and so on, then what's the point? I thought that multiple top level domains existed in order to create a larger namespace then we'd have without them. Hmm, I guess they really only exist to inflate the income of domain registrars.
A very apt analogy.
If I've got the trademark "Slashdot" in Malaysia that is prior to the inital purchase of the domain Slashdot.org... do I have some right to Slashdot.org?
... LoanCity.com was smart.. they squated every concievable name out there. Now maybe you disagree with them for some reason and you want LoanCitySucks.com ... that's understanble, you have your right to say whatever you want on the internet, unfortunatly that's already taken by LoanCity.com. Now how do you make a fair decision in this case? I want my freedom to say LoanCitySuck.com ... but LoanCity owns the trade mark... You don't! You just leave it as first come first serve.
I can't believe anyone is seriously trying to bring some sort of order to this mess. That is the absolute definition of futility!
Here is an example: WHOIS lookup for LoanCityAtemyballs.com
So, make it a lottery. Ammend the UDRP so that instead of saying an arbitrator - known as a panelist under the UDRP - is selected by a service provider such as WIPO or NAF alone when the complainant - the trademark holder - requests just one panelist, it says the panelist will be drawn by lot.
This almost seems to be saying that the UDRP suffers from the same problem as most everything else involving lawyers. Namely, lawyers have nothing to do with moral justice. Their job is to win cases. If they do that, they are considered to be good.
"The girl makes Godot look punctual." -- Buffy
The bug that the goatse.cx linker used was that the links in the sig do not show where they link to, but you can fake it.
Observe:
Repeal the DMCA!
Perhaps this could explain the sex education on homeschool oriented domains? I'm not sure whether it's right to love or hate ICANN for things like this...
Disputes decided by a single arbitrator favor the complaintant (usually trademark holder) ~82% of the time.
Disputes decided by a 3-arbitrator panel favor the complaintant ~60% of the time.
Either the single arbitrators are biased, or the process for deciding which cases get a single arbitrator vs. a panel is biased.
I find it incredible that anyone is surprised that when complainants are give the choice of arbitrator, that they would choose arbitrators who have decided for the complainant more often.
Thus, there is a built-in incentive for arbitrators to decide for complainants rather than respondents.
Similarly, the US correctional system (which is run by for-profit corporations), has an incentive to make the situation worse rather than better, with the unfortunate result of these corporations funneling money to 'tough on crime' political candidates, and creating the 'war on some drugs' to incarcerate the perpetrators of victimless crimes.
These are examples of elementary positive feedback loops, and no-one should be surprised at the results.
The real Webmaven is user ID 27463. I don't rate an imposter, because my ID is such a lame-ass high number.
Some people troll with text. Others troll in perl. YHBTBT (You have been trolled by Taco)
"When a lot of us hear the word "gooey", we think about sticky buns or creamy sugary fillings (yum)."
C'mon, seriously, that's not what most people think about is it?
Advocat --> AdvocatE
cnn.co --> cnn.coM
Thank you.
Mmmm.. Donuts
I wonder, if someone registers a domain name BEFORE a trademark is granted/filed/whatever, could the trademark holder take it? Or would the domain invalidate the trademark? Or neither? .NET trademark. But .NET wasn't trademarked until June, 2000, after www.net was registered.
For example, www.net is a test domain for Worldcom Canada. It also seems like it would infringe on MSFT's
Erik
"You," Bite me.
"Each and every one of you." Bite me.
So, how should it work. Should there be an established jurisdiction in which trademark disputes related to domain names should be examined? Since when did trademarks become relevent to namespacs independant of usage? The one universally accepted principle of trademark law is that they cover a namespace with respect to a particular usage meaning the name McDonalds in conjunction with resteraunts and McDonalds in conjunction with a farm would never come into conflict and whoever registered McDonalds.com for his particular purpose, so long as that purpose was not to trade on the percieved value of the name in it's alternate context, would be perfectly within his rights to do so. As I said, this principle is common to all implementation of copyright law, so how is this even an issue?
The problem isn't weather or not there's an international organization for settling trademark disputes, it who defines the venue for the dispute settlement, and who is actually arbitrating. The argument is that the arbitration that is being done isn't fair, but this is only because the person doing the research doesn't feel that it's fair, since 'fair' is an entirely subjective thing in this case.
--CTH
--Got Lists? | Top 95 Star Wars Line
Here is an example! JoeMontana.com
It seems to me that more and more we're seeing control handed over to organizations that have no direct public accountability. (Of course, I haven't been around that long. :) If an elected official does something we don't like they have to answer to the voters. (I don't doubt that they're often bought, but they still have some respect for the opinions of their constituents.) In the case of organizations like ICANN, although they accept public input, we have no direct control. This makes everyone suscpicious.
The WTO is another example. Sure they say that they have our best interests at heart, but we don't know that. We never voted for them. I think this is the biggest reason that there are so many upset about the WTO, and many more who are made very uneasy by it.
I am made nervous by unelected, powerful, rule-making agencies whose loyalties are obscure.
What does that have to do with this guy's study, which is not about the absolute percentage of these cases resolved in favor of the complainants, but about some mighty suspicious looking differences in those percentages depending on which arbitrator is hearing the case and which of the alternate procedures are followed?
His argument is basically that, out of all the arbitrators legitimately accredited by this process, some seem much more likely to rule in favor of complainants than others, and oddly enough it looks as though somebody is using the process to steer cases to those arbitrators. That's procedural bias even if these "hangin' arbitrators" are in the right. Not that I think they probably are.
From the decisions I've read, a lot depends on whether the chosen judge Gets It. Here's an example that represents the worst case of a clueless arbiter. It was ruled by Mr. Michael Ophir that bodacious-tatas.com should be transfered to the Tata Group in India.
Here's the rationale, using the standard criteria:
(i) your domain is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect to the domain name; and
(iii) your domain name has been registered and is being used in bad faith.
i) TATA exists as a string within the domain name, thus, confusingly similar
ii) If (i), then the TATA Group has a legitimate interest in the domain, therefore the respondent does not
iii) If (ii), then it is used in bad faith. Plus, it's porn!
Judicial bootstrapping! Most judgments aren't that bad, but there are more examples like that (absolutporno.com, et. al.). It seems that porn sites are treated as a lower class.
When Freenet picks up the pace again, it will be a far superior alternative to the web for Slashdot geeks. Gone are the website.free addresses, in favor of something that looks more like AWEVq2BZ23&4fL29nSQ\bob.html. You just follow links from one page to the next to get where you need to go. Nobody owns a central name, so Freenet is impossible to cybersquat on. Freenet is also superior to the www in the fact that there is currently no spam and a Freenet page is certainly not something you can advertise with a catchy .com phrase.
Also, there is no court that can take the information down. The Freenet pages are encrypted on hundreds of computers. The more popular the page, the more copies. The DeCSS source code and other "controversial" I.P. information will stay right where it is.
Go freenet!
Remember "Bring 'em on"? *sigh
In 100 years Home Alone will seem like a classic movie.
If someone works at it and shows the proper intent, the trademark holders can still lose
m l? tag=lh
A graphic designer who holds armani.com wa given the right to continue holding the domain.
http://news.cnet.com/news/0-1005-200-6841291.ht
The arbitrator should be assigned by the registrar who registered the domain in the forust place. this would spur competition in both the registrar and arbitrator spheres.
When the one doing the suing decides the arena it is heard in. it is inevitable that "trademark friendly" arenas will predominate the process.
The system does protect he moneyed interests at the expense of free speech and legitimate alternative trademark holder. Who should get sun.com? It is a computer company, a dishwasher detergent, and a newspaper. Shold Sun microsystems get the domain just becuase they have a "more valuable" trademark?
Hello fellow Slashdotters. I am very pleased to see this newly-released report by Michael Geist. Several months ago, I got a very embittering crash-course in the UDRP process. The conclusion I arrived at is that the UDRP needs MAJOR REFORM. I am the registrant of the Tobacco.com domain name. I have been since 1995. Earlier this year, I received a "cease and desist" letter from a "company" calling itself "Tobacco.com, Inc.". This "entity" was nothing more than a bogus (as in fraudulent) culmination of several pieces of filled-out paperwork, in an attempt to superficially "legitimze" themselves. They attempted to reverse domain name hijack Tobacco.com, by way of their filing a UDRP against myself. To make a long story short... I immediately sought Counsel with John Berryhill, an expert-attorney in the area of trademark law and, one who has a great deal of experience with UDRP defense work. Seeking John Berryhill's aid was the best thing I could have possibly done in this case. On May 18th of this year, they withdrew their complaint against myself. (After seeing my response and realizing their fraud was easily uncovered.) My complaint, then? The UDRP makes it ALL TOO EASY for frivolous and fraudulent complaints to be brought forth. This means the UDRP can easily be used to effectively harass domain name registrants. I spent nearly $3500 defending myself against fraud which, if the UDRP was more intelligently crafted, would have never even been considered as a legitimate case. Personally, I think that generic terms (such as "tobacco") should be completely exempted from UDRP process. To add insult to injury, the NAF (the arbitration panel which was selected to hear the case) ended up keeping my $1250 three-person panel fee, EVEN THOUGH THE PANEL NEVER SAT! To me, that is criminal activity on the behalf of the NAF. ( The Register published a news item on this, specifically, at : http://www.theregister.co.uk/content/archive/19217 .html )
I decided to organize all information related to my case, and publish my findings online. I only hope that what I've assembled can serve to help others who face UDRP injustices.
The casework can be seen at :
http://Tobacco.com/attempted-hijacking
Warmest Regards,
Michael Fischer
LMAO!!! That's fucking HILLARIOUS!!
What moron could posibly confuse absolutporno.com with anything other than a porno site? And "bodacious-tatas.com"??? LOL! "Confusingly Similar" my ass. Everyone knows the whole process is completely biased and owned by unscrupulous corperations.
OpenNIC is a user owned, international Network Information Center alternative to the traditional Top-Level Domain registries.
OpenNIC was started in reaction to the growing concern about the lack of democratic control within the ICANN.
The best thing you can do to help this initiative is to point your root-nameserver(s) and/or your resolving configuration to the OpenNIC nameservers. You'll still be able to resolve all the traditional ICANN TLD's, but you'll also have access to the new TLD's.
DebianLinux.Net
"I guess they really only exist to inflate the income of domain registrars."
To the people who think multiple TLDs are going to end an 'artificial scarcity' of names: Guess what? It only makes trademark holders pay five, six, ten (?) times the amount for a domain name, stress the hell out of the namespace, confuse the hell out of visitors, and by confusing the hell out of visitors discourage them from buying anything online.
"Would you like a dot-biz with that dot-com?"
Use Evolution instead of Outlook? Bewa
Wow. This is good stuff. Read their PDF report.
A very STRONG tip: if you are the respondant in a domain dispute, the other party gets to select which agency handles the dispute. Your only chance in counter-rigging the decision ahead of time is to pay (at a 50% discount) for a 3 member panel to hear the case. If they already paid for a 3 member panel, they've done you a service.
As a bonus, with a three party panel, YOU get to select one of the members! Further, the numbers show a STRONG statistical coorelation between 3 member panels (where the defendant makes an argument) and 1 member panels (where the defendant makes an argument) that are less leaned towards the party bringing the complaint.
Note of interest: when the party bringing the complaint paid for a 3 person panel, the three person panel also ruled in favor of the complaintant less often than on a 1 person panel.
Also interesting were the numbers at one of the arbitration agencies that (not the words of the researchers) pointed out a number of 'hanging judges'. And guess what? These hanging judges were assigned a disproportionate amount of the caseload.
What does this all say? Peer review. You're less likely to have a rogue judge if his actions are reviewed by other judges. And yes, they have pointed out rouge judges which have completely ignored the rules of arbitration.
Peer review is good for code, and it is good for arbitration.
You overreacted, spending the $3500.
Should have handled this UDRP defense yourself. Even the most out-to-lunch single-person panel would never let this one get through. If the unthinkable happens, you can still go ahead and stick a lawyer up their ass and keep your domain, but it won't come to that.
Scandalous about NAF keeping your money, though.
PS, Canadian corporate info is available online , but I was unable to find a Tobacco.com, Inc. Is it possible they filed a trademark application on behalf of a non-existent entity? By the way, 401 Queen's Quay West is Harbour Terrace (luxury condominiums), so they may have assets worth going after. Canada has an advanced legal system, after all.
PPS, Your domain tobacco.com may not be worth as much as you think... e-commerce or even advertising is a complete non-starter in today's climate. Suggestion: put up tobacco lawsuit resource info (class action lawsuits, ambulance-chaser lawyer ads, etc), and the tobacco companies might find it cost-effective to pay you a million to take the domain off your hands (after all, literally hundreds of billions of dollars are at stake).
WIPO. That is sign of further commercialization
of internet infrastructure. There must be a
better way, like alternative DNS servers, that
can be distributed to all internet users.
First DNS server is a rogue DNS server that will
redirect any A queries to a defaced versions of
websites , or rather sites that will explain
what kind of nasty things the company does and
and what kind of things can be done to hurt the
bottom line of the company.
The flag of the movement can be, to advertise an
IP adress to be inserted as primary DNS server.
Loads maybe high, but it might be justified
for it be located and even sponsored by Exodus
or some other entity and there will be free
advertising for whoever does it. Exodus,
actually would be excellent choice.
I am currently busy and don't have this many
resources as to run a rogue DNS server for masses
but this can be potentially good thing.
If server has good availability maybe an added
benefit compared to those fucked up @home and other ISP dns servers.
The US Government and Internet authorities know the simple solution to trademark and domain name problems.
I have been corresponding with United States Patent and Trademark Office and the Department of Commerce (also UK Patent Office).
They do not deny this solution would separately identify all trademarks.
Every common word is trademarked, from Alpha to Zeta and Aardvark to Zulu - most many times.
The authorities wish to abridge peoples use of these words - the US Government violate peoples First Amendment rights.
People were clever enough to buy these domains - it is their Intellectual Property.
Big business decided it wanted to steal these words from people - even though these words are NOT just used solely by them.
For trademarks to claim it as their OWN is an abuse of 'unfair competition' law.
They all use spin, lies and propaganda.
The big lie being there is no answer to these 'consumer confusion', 'trademark conflict' or 'passing off' problems.
The Sunrise Period for new TLDs is a propaganda solution - ask authorities to deny this:
A THOUSAND new open TLD, each with sunrise, will not solve the problems.
Apple computers, will still make claim to every Apple.[anything] - even though they share word with 727 other trademarks in the USA - plus all those in 200+ countries.
You still not know which owns apple.info - it is all a load of bull.
To see solution, please visit WIPO.org.uk - World Intellectual Piracy Organization.