Slashdot Mirror
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
E-Mail This Article
Printer-Friendly Version
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
[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.
"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
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)
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
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