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More Domain Disputes Labeled 'Reverse-Hijacking'
merodach writes: "This article on technews.com actually has a rare piece of good news in it - two corporations whose attempts to take domains from others were rebuked as attempts at "reverse hijacking." We can only hope that maybe the arbitrators are finally beginning to see the light." Read the story and be amazed at the audacity of these companies.
Technews was slashdotted before any comments went up! Now that's effeciency, folks!
Their server seems to be having problems... here is the text...
... to set out any of the clearly lengthy background to this dispute is surprising," the panel said in a written ruling.
... avoided the full story," the panel wrote. "As a result of its rather lengthy dealings with Mr. Maggi, (Nestle) was aware that Mr. Maggi intended to use the domain name for personal use, yet (it) ignores these negotiations in the complainant and fails to even mention (Maggi's) alleged personal interest in the domain name."
WIPO Arbitrators Stern In Domain 'Hijacking' Rulings
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By Steven Bonisteel, Newsbytes
GENEVA, SWITZERLAND,
19 Oct 2001, 5:20 PM CST
A pair of companies - including Swiss food giant Nestle - have received unusually stern rebukes from international arbitrators who say the firms attempted to abuse a procedure that is supposed to sort out disputes over the ownership of Internet domain names.
In two separate decisions published this week, arbitrators refereeing disputes on behalf of the Internet Corporation for Assigned Names and Numbers (ICANN) said the companies that had accused others of being cybersquatters were in fact attempting to "reverse hijack" the Internet addresses in question.
Findings of reverse hijacking are relatively rare under ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP), even though the system for settling disputes over conflicts between trademark holder and domain-name registrants has seen more than 4,500 cases in less than two years.
But even rarer was the severity of the spanking received by Nestle at the hands of three arbitrators assigned by the World Intellectual Property Organization (WIPO).
Also accused of reverse hijacking - but reprimanded less harshly by another trio of WIPO arbitrators - was Boston-area software company Aspen Grove, which had attempted to claim the domain AspenGrove.com from a family in Salt Lake City.
Nestle had turned to WIPO's Arbitration and Mediation Center, one of four organizations accredited to resolve UDRP complaints, in a bid to evict another Swiss company, Pro Fiducia Treuhand AG, from the Internet address Maggi.com.
Nestle said the registration of Maggi.com clearly encroached on the trademark it holds for its Maggi brand of sauces and soups.
It complained that Pro Fiducia Treuhand, a financial and management consulting firm with some 40 employees, had no legitimate claim on the Maggi.com domain and that it had registered and used the address in bad faith because, after five years, the company had not made use of the domain for a Web site.
But Pro Fiducia Treuhand says there's a reason it is listed as the holder of Maggi.com: its chairman, Romeo Maggi, had provided the company contact information when he registered the domain for his personal use in 1996.
In his response to WIPO after Nestle's complaint, Maggi said he still plans to use the address to build a Web site for his family and that he had informed Nestle's lawyers of that when they contacted him in 1999. Maggi said appeals from Nestle for the domain actually led to a meeting between the two sides in Geneva a year ago.
The panel of WIPO arbitrators, led by Washington, D.C.-based international business law specialist Dennis Foster, ruled it was clear that Maggi had a legitimate interest in the Maggi.com domain. But what seemed to annoy the trio was that nowhere in Nestle's complaint did its lawyers mention the existence of the Pro Fiducia Treuhand chairman.
"The panel finds the failure of (Nestle)
Pointing out that Nestle had certified in its complaint that the information it provided was, "to the best of (its) knowledge, complete and accurate," the arbitrators wrote: "The panel does not see how that could properly have been said."
"(Nestle) has
"In fact the initial complaint misstated the registration record by failing to name Mr. Maggi as the administrative contact, an error later corrected when noted by the WIPO staff," the panel said. "Had Mr. Maggi failed to defend his position, perhaps complainant's lack of candor might have resulted in a decision in its favor."
"Having instead been exposed, that lack of candor concerning material facts, tied with the lack of legal merit to (Nestle's) position, leads us to the conclusion that this complaint wasbrought in bad faith and constitutes an abuse of the administrative proceeding."
In the case of the battling Aspen Groves, the workflow-software company from the east coast had complained that Michael Clark of Salt Lake City had no right to AspenGrove.com and that, as in the Maggi.com dispute, the lack of an active Web site at the address suggested a cybersquatter was at work.
Lawyers for Aspen Grove argued that, "by continuing to use the domain name without offering any or little content or any legitimate business use, (Clark) has confused (Aspen Grove's) prospective clients and business partners and has diluted the value of (its) trademark and reputation."
In a response filed on his behalf, Clark's lawyers blasted the notion that the lack of a commercial Web site constituted bad-faith use on an Internet address.
"Domain names may be owned by individuals and utilized solely for personal use," Clark's lawyers argued. "The rule advocated by (Aspen Grove) - that maintenance of a domain name without construction of a commercial Web site is tantamount to bad faith - ignores the history of the Internet and the World Wide Web, is inconsistent with the (UDRP), and is generally poor public policy."
Clark told Newsbytes that his family has used the domain - which reminded them of the aspens around their home at the time the address was registered - for personal communication, including e-mail and the sharing of family photos, for more than four years.
But the real clincher for the WIPO panel led by Mark Partridge, an intellectual property lawyer in Chicago, was that Clark had registered his domain in January of 1997 - a date which was not only before Aspen Grove applied to trademark its name, but which also pre-dated Aspen Grove's incorporation as a company.
Argued Clark's lawyers, "The complaint is based on the incredible premise that a business is ipso facto entitled to a domain name despite the fact that a private individual has registered and continuously used the domain name before the business even existed."
The WIPO arbitrators agreed, saying Aspen Grove's weak claim on a trademark and the fact that Clark's registration was two years ahead of the software company's incorporation justified a reverse-hijacking ruling.
"The panel finds the complainant, even though apparently knowledgeable and assisted by reputable counsel, nonetheless chose to file a complaint without a colorable claim and thus abused the ICANN proceeding," the arbitrators wrote.
Reported by Newsbytes.com, http://www.newsbytes.com .
17:20 CST
(20011019/WIRES TOP, ONLINE, LEGAL, BUSINESS/CYBERSQUAT/PHOTO)
© 2001 The Washington Post Company
--
Don't sweat the petty things, and don't pet the sweaty things.
Well, this is interesting but keep in mind that "reverse hijacking" requires the plaintiff be contesting a trademark they didn't have at the time the domain was registered. I sorta assume that if you snooze, you lose. How about the rest of ya?
I run a online game, and had a domain registered for it, until a company claimed I was infringing on their trademark and wanted the domain.
Well fighting them I thought would be too expensive so let them have it for their nickel. (They paid to transfer it). They are now out of business and a couple of squatters picked it up.
They want $2500 for the domain name. Excuse me?
The game I run is covered under the Diku MUD License, Merc License, and RoM MUD license. It is fun, but not worth $2500.
(btw, for those who don't know, those licenses expressly forbid profiting from running the game based on them)
So was there any kind of problem like this related to 1-800 phone numbers? were you able to buy and sell them, or were they only available from the phone companies on a 'lucky' basis. If I had 1800-go-pepsi , could pepsi make me give them that phone number? I'm sure the case could be different cuz you could spell other things, or the numbers could have appealed to you, or just been randomly drawn. But it's crazy that companies think they should be making millions on everything computer related just cuz Microsoft and other large computer and internet companies do.Sucks. Makes me wish computers were only for geeks like they used to be.
Don't Tread on Me
IF REFFERINGURL="http://www.slashdot.org"
:P
THEN chmod 000 slashdottedpage.html
Sorry bout the pseudocode, it would probably work though
Talez
Yeah, the board decided that these guys (Nestle and Apsen Grove software) were abusing the system.
What isn't mentioned is what the repercussions will be.
If it is just a matter of pissing away the money on lawyers, that isn't enough.
Sounds like this system is in bad a need of loser pays as the US court system.
-Peter
I am really amazed by these rulings. I was beginning to think ICANN was getting paid under the table with the amount of .coms they keep handing over to companies.
.org ... seeing as how an IRC server can hardly be misleading clients, or damaging a trademark.
.org would also qualify.
A friend of mine has a popular-candy-name.org (not posted so as not to draw attention) that he is using for an IRC server, and has so far never had and problems... but I've often wondered if popular-candy-company would come along and snatch a
Since Romeo Maggi's defense of Maggi.com for individual use and email seemed to fly, I wonder if an IRC server under a
The key misunderstanding in all such issues is that people view domain names as a form of property. This is patently untrue. It is impossible to form a logical perspective on this case if you regard something as abstract as a domain name as if it was a subject to ownership.
Domain names are an abstraction. Essentially, they are no more than a number stored in a database or databases, none of which is owned by the domain's so-called owner. The numbers aren't owned, since we know you can't own a number. The databases are the property of whoever maintains them. Thus the principle objects of the dispute are not even the property of the disputants.
A domain name has no corporeal representation. You cannot touch it, nor can you point to it or isolate it by any means. It has no permanent existance. It must be regularly renewed. Claiming that you can own a domain name is like claiming that you can own some electricity. At best it is an illusion provoked by ignorance.
The closest a domain name gets to ownership is the contract between the "owner" and the registrar. This, however, is not a domain name. It is a contract, and covered under contract law, not IP law. The registrar has the right to terminate the contract if they see fit, provided they comply with the breach of contract conditions. If the registrar is offered a sufficiently high fee to terminate a domain name agreement in favour of a new client, they have the right to do that. If the law of supply and demand is to operate properly in the net, they have a duty to break their contract in favour of the highest bidder.
Denial isn't just a river in Italy
First off, I don't know what everyone else is talking about, I had no trouble at all getting to the article in question.
Anyway, I for one am glad to see this kind of ruling. Companies should not just expect to have a domain name handed over to them because they think they have rights to it.
Unfortunately, strong-arm techniques such as pending litigation or going to the registrar (lets not forget when Network Solutions gave away ownership of personal domains a few years back to companies who demanded them) often win out, especially against personal/small business sites who wouldn't have the resources (financial and otherwise) to defend themselves.
Both of these cases were clearly a show of insolence by these companies, and for once, karma bit them in the arse.
[Nestle] complained that Pro Fiducia Treuhand, a financial and management consulting firm with some 40 employees, had no legitimate claim on the Maggi.com domain and that it had registered and used the address in bad faith because, after five years, the company had not made use of the domain for a Web site.
Lawyers for Aspen Grove argued that, "by continuing to use the domain name without offering any or little content or any legitimate business use, (Clark) has confused (Aspen Grove's) prospective clients and business partners and has diluted the value of (its) trademark and reputation."
That stuff worries me. I personally have two domains that don't have any hosts, just MX records for personal email. I fully expect someday some company to come along and somehow claim trademark infringement from a non-existent web site.
So does that mean I should go ahead and put up a web site with infringing material so they can sue me easier?
This is like saying if you get mail at McDonald's Avenue, you are a trademark infringer, and doubly so because you aren't running a hamburger stand!
Kudos to the opposing lawyers and WIPO (that acronym always makes me chuckle when I say it out loud) for blasting that stupid notion. But I still fear that someday I'll have to deal with this bullshit even though my domains were first registered 7 years ago, just because some idiot wants the domain and can't deal with the fact that he doesn't have it.
There should be some sort of fines involved here. These companies will keep trying this garbage unless they're punished in some way.
Just because I AM paranoid doesn't mean they're NOT out to get me.
Take a look at this. Assuming my last name really *was* Wellings, I'd be pretty pissed off about this. This is blatant cybersquatting. I'm VERY sure that members of the Wellings family have prior history claim to that domain and NOT NamePlanet.
Oh...and for the record, Wellings isn't my last name, but they ALSO own a domain with my last name. I ought to sue.
"Mod, mod, mod...and another troll bites the dust."
Surprised by their audaciousness? No.
Interesting how just about anyone that has ever re-financed a house, had to deal with insurance companies or has friends in corporate law knows instinctively that large multinational corporations can be vile. They have no problem being as dirty as it takes to win whatever it is they deem important to their interests. We know this, as we are big boys and girls.
But there is a whole new paradigm out there, successful geeks in positions of power that can arbitrate and dictate to the old guard of business. This still fascinates me. Even companies like Xerox and IBM had been toadying to the wall street/ Madison Avenue spirit of post-WWII business acumen since forever, so as that when the new school of geek economy was coming up the ranks they were perceived as aliens.
I don't even want to get into the whole old/new economy thing. Or how companies like Intel and HP blended the two models to be jaugernauts. I just get a strange thrill whenever i see the old school tide smash into the new school sea walls. (once upon a time problems like this would be handled at a country club with big business always winning, just look at how "fair" the FCC was/is at brokering bandwidth to the "public".)
Every time it happens the status que is forced to re-examine itself. How bad can that be?
"Findings of reverse hijacking are relatively rare under ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP), even though the system for settling disputes over conflicts between trademark holder and domain-name registrants has seen more than 4,500 cases in less than two years."
Hmmm, now I wonder why that is...
Oh, wait, corporations have more money than ordinary shmoes. I knew there was a simple reason!
(sigh)
-Kasreyn
Kasreyn: Cheerfully playing the part of Devil's Advocate to hairtrigger
The new law's evident flaws allow people to exploit it in such a way as to steal a web-domain from someone. Aswell as this, people who buy domains of famous people's names etc. will always get away with it. I cannot remember the URL but there's a site which someone bought because a new company was coming out named this but when faced with court precedings, he researched the name of the company. He found out that there was a rare breed of chicken with the same name as the company and so he made a website about that type of chicken.
I was quite shocked to hear of a case whereby someone registered a domainname which was the name of a famous person and put a fan-site at it. The person who registered the domain name was forced to hand over the domain and the expesive hosting he'd paid for to the famous person. I just talked to a friend about this and they told e that there's still no website at the domain.
I think the next poll should be about abolishing the idiotic "CyberSquatting" laws.
In a response filed on his behalf, Clark's lawyers blasted the notion that the lack of a commercial Web site constituted bad-faith use on an Internet address.
.com, does not mean you have to be a commercial site?
Excuse me? just because it is a
Is slashdot.com a commercial site?
(or am I mistaken on this?)
It is like saying if you buy a sports car and don't drive it like a sports car you should get a ticket other wise (because sports cars, next to motorcycles, prolly get more tickets than your average station wagon.)
Is this the way the legal mind works?
So, if a "lawyer tazer" is invented, we have to use it, or else we will be sued?
or
Yes, a hammer is meant to hammer in nails, but you'll be in deep trouble if you should *dare* pull a nail out.
Gotta love "Catch-22's" like this.
Amusing in a sad/ironic/silly way.
I suppose if the owner gave the domain over to Nestle it would technically be "The Gift of the Maggi"?
Have you read the moderator guidelines? Well, have you, PUNK? (and I want a Karma: Gnarly option)
Somehow I recall some sort of case where the two sides wanted to settle, but ....
But the lawyers saw that they were going to make so much money that they threatened to sue their clients if they did settle in advance to minimise the costs.
And then there is the legal argument that since companies are so beholden to their stock holders, and with certain stock holders so argressive in trying to jerk the company around ... well not suing would open them to legal liabilty from the stock holders for not maximizing profits.
again, the lawyers win.
Shoot all the lawyers, now, I say now!
"It is a greater offense to steal men's labor, than their clothes"
Earlier this year he received a binder with 5 inches of documents, containing the complaint that the American Film Marketing Association had submitted to WIPO to try to take his domain.
This caught Andy completely unawares, and unlike the AFMA, he did not have the benefit of expensive legal counsel to prepare his case - and neither did he have much time to prepare it.
One of andy's responses was to put up www.shameontheafma.com to publicize the case and elicit public support.
I think it was one of the most difficult experiences Andy has been through but in the end he won - that is, he won the right to keep that which was his in the first place.
Read Andy's statement about his victory.
Perhaps Andy can take some small comfort from the fact that the AFMA paid their legal stuff likely hundreds of dollars an hour to harass him this way, money which they entirely wasted.
Andy does internet consulting by the way.
-- Could you use my software consulting serv
Usually, I'd have to see a play, a film, or read a book to find people with such temerity getting their comeuppance. Nice to see the little guy win now and then against deceit.
A feeling of having made the same mistake before: Deja Foobar
But even rarer was the severity of the spanking received by Nestle at the hands of three arbitrators assigned by the World Intellectual Property Organization (WIPO).(emphasis mine)
The article states that Nestle was "spanked" hard by the WIPO arbitrators, but the only negative consequence mentioned was a tongue lashing, equivalent to, "Bad Nestle! No cookie for you!"
Is that what constitutes a severe retribution from the WIPO board?
ShoutingMan.com
Few will probably remember this, but many years ago I was eating some Wheat Thins and noticed the company logo and the letters N B C on each cracker. The company is Nabisco, which was once known as National Biscuit Company. Keep in mind that their logo looks a little like an antenna and think about how they and a radio, later TV and media concern National Broadcasting Company butted heads. Clearly Nabisco found a different name and backed down, but they still but N B C on their crackers.
A feeling of having made the same mistake before: Deja Foobar
The registrar has the right to terminate the contract if they see fit
Actually, some registrars, like gandi, waive that right. Not only that, they give you ownership of the domain. Read about it here.
But yeah, this'll depend heavily on who you sign up with.
Got Freedom?
Thinking?
Whoever you are, whatever you put in the coffeepot at WIPO headquarters, please keep doing it. Thanks.
$x='S24;r)>63/* h@<5+oZ)32"5cz';$me='phroggy'x$];
$x=~y+ -xz+\0-Tx+;print$_^chop$me for split'',$x;
You are certainly naive.
Which some might say is still better than being rude.
Why do you think breach of contract clauses exist?
To spell out penalties, the only purpose of which is to discourage people from breaching contracts.
Perhaps if you had actually read Adam Smith's work you would know that he addresses this in both The Wealth of Nations and The Theory of Moral Sentiments.
As it turns out, I have read The Wealth of Nations. I don't recall anything about domain name registrations, or about breaking contracts whenever it would be profitable to do so (perhaps you could provide a citation?). I do recall a great deal about freely making advantageous agreements, and it is pretty clear from game theory that anyone who makes a habit of breaking agreements will be at a disadvantage when it comes to making them, so I doubt he would have endorsed your view.
Breach of contract is as integral to commerce and the free market as banking.
The existence of penalties for breach of contract is as important as the existence of penalties for interfering with the free market, or for robbing banks. But I don't agree that commerce depends on people breaking contracts, monoplizing markets, or robbing banks.
-- MarkusQ
P.S. Note that termination of a contract by either party, if under the terms of the contract, is not breach.
Wow. The gap between us is very wide. I can't even respond to your "points" here; they just fall apart when I try to pick them up. (Being eaten alive by rats can't be "a terrible thing" because all terrible things are felonies? How do you tell "self-deceiving libertarians" from libertarians that are deceived by others? Do you mean that atheist libertarians think contracts are worthless?)
But what boggles me most is that, leaving aside the various reasons someone might want to honour their contracts (e.g., self respect), you don't even seem to realize that it's often demonstrably a good strategy. How can you even function in society?
-- MarkusQ
Uh, Napoleon *did* lose the battle at Waterloo...and spent the rest of his life in prison. As the saying goes, they named a dessert after Napoleon, and a main course after the British general who got the credit for beating him. Don't know of any dishes named Blucher, though.
Shutting down free speech with violence isn't fighting fascism. It IS fascism!
You don't know the web and the internet are the same thing? Jeeze! I bet you're not very good at AOL!!
OK, sorry... the point is, these are unfortunately interchangable words in modern English. Lucky us for getting the right decision (for once.) But man oh man do I hope you don't put up a http as these other folks are suggesting. Don't legitimize it!
If you get letters from lawyers complaining about them, reply that the administrater can only be contacted at webmaster@your.disputed.domain and give you evidence you're actually using the things.
I would also hope that you record your McDonald's avenue analogy, along with all your other thoughts on the issue now, in case some jackass does decide to sue you. Who knows? Maybe educating a judge will actually effect a change in the way we all live, and put you next to ESR in the anals of making my computer a better place to live!
My apologies if this isn't coherant - I should've got to sleep about seven hours ago!
Why is it that so many media companies are making themselves look like idiots? The MPAA has accomplished quite a bit on this front (though not as much as the RIAA).
Now the AFMA has joined the cause. I read everything at Andy Hasse's site - very interesting - and it's quite clear that AFMA was using strongarm tactics like the other ***A's. Andy Hasse had been using afm.com since 1996 but AFMA thought they were entitled to the domain "just because." What's worse, AFMA was already in bed with WIPO and was apparently hoping to use that stature for their gain. I'm glad they got slapped on the wrist.
Who's next? Why do these companies think they're entitled to the world, just because they make movies or records? Is there some god-given eminence that comes with such a business, that I'm not aware of? I'm sorry, ***A's, but the last movie I paid money to see at the theater was Rush Hour (the original). You can start up ten more various media Associations and it won't make a bit of difference in my book, until one of them demonstrates that they value the _consumer_ as much as they value their bottom line. If that day comes, that company is who'll get my money.
Ever since these associations have been showing their ignorance, I've avoided the theaters and I've been getting my movies on Showtime. I get the same product, in the comfort of my own home, included in a price I'm already paying (for cable), and my popcorn only costs $0.99; who cares if it takes awhile to get the movies.
I see no reason to support stupid companies and stupid organizations. MPAA and AFMA can go fuck themselves.
Shaun
Thanks to the War on Drugs, it's easier to buy meth than it is to buy cold medicine!
In Australia, Maggi is one of the two biggest brands of sauces - there are large advertising campaigns, and every supermarket stocks them. Everyone here knows what Maggi gravy is.
The simple solution to trademark and domain name problem is hidden by authorities.
.REG for registered trademarks - in the UK, where would you get Apple computer from:
.REG to avoid 'consumer confusion', 'trademark conflict' problems and to stop anybody 'passing off'.
It was ratified by honest attorneys - including the honourable G. Gervaise Davis III, United Nations World Intellectual Property Organization panelist judge.
Every common word is trademarked - each word many times over.
By giving trademarks priority, even without this solution - they violate First Amendment.
ICANN, the United States Department of Commerce and the United Nations World Intellectual Property Organization know the solution.
I have been communicating with USPTO, US DoC and UK Patent Office - none deny my assertions.
The authorities have been using lies and propaganda;
As example, ask them to deny this:
THOUSANDs of new open TLDs will not solve any problem - even if every one has 'Sunrise Period'.
It will not solve 'consumer confusion', 'trademark conflict' or stop anybody 'passing off'.
Also, as an example on Sunrise, thousands of trademarks using word 'Apple' have no guarantee of being able to use name.
Apple computers will still protect and make claim to every Apple.[anything] - even though they share word with 727 others in the USA alone (plus all those in 200+ countries).
Simple Solution:
With new closed TLD of
apple.record.uk.reg OR apple.computer.uk.reg?
Yes - I know you can read and it is totally obvious.
No 'consumer confusion', 'trademark conflict' or 'passing off' there then.
dot REG acts as certificate of authentication and directory.
The golden solution to identify the source of goods or services.
You would think it every trademarks dream - except for those big businesses that use their trademark to unlawfully claim dominance over others.
The label or tag that is impossible to copy - the ultimate for those against counterfeit and fraud.
If you can use the telephone, then you can certainly use dot REG.
Marketing could still use apple.com - just redirected to
The simple solution is name.class.country.reg
Please visit WIPO.org.uk
Right, I know you were tired when you wrote that, but I'd appreciate it if you kept ESR away from my anal nonetheless. Thanks.
-Legion
Further to my last post - classes can be broken down into sub-classes.
WIPO knows which sub-class would cause no confussion with others.