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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!
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.
A very apt analogy.
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...
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.
Advocat --> AdvocatE
cnn.co --> cnn.coM
Thank you.
Mmmm.. Donuts
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
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.
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
If you were in Scotland you probably could. Lord McDonald has been known to take a dim view of that company.
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).
Um, no. www.net has a TLD of .net like millions of sites the name of the site itself is www. (Incidentally, www.www.net is the same site; its easier to parse that one semantically.)
Liberty in your lifetime