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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.
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
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Don't sweat the petty things, and don't pet the sweaty things.
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)
[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.
"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
This is utter nonsense. If the law of supply and demand is to operate properly, it must first be possible to trust that people will honour contracts.
-- MarkusQ
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