Fair Domain-Dispute Arbitration Firm Quits the Business

fwc writes: "According to this Newsbytes story, EResolution has decided to quit the Domain Name Dispute-Resolution business because its reputation for being fair has driven away its potential customers - the trademark holders who are filing the complaints. Apparently (and understandably) the trademark holders prefer to use those arbitrators who find for the trademark holder most of the time. Perhaps it is time for ICANN to rethink their policy."

Comments

Predictable Big Business

[FlowerPotAdmin]

It's the same thing with legal proceedings in situations where corporations can choose where they take place (i.e., judges who are known to rule a certain way. The bottom line is that one cannot expect businesses to do anything contrary to their own advantage, because the system in which they operate is of that mentality.

Re:Predictable Big Business

[Nematode]

It happens a lot more when it comes to arbitration. In all sorts of goods and (especially) service contracts, the fine print includes provisions for binding arbitration to settle disputes, instead of litigation. You see them a lot in doctor/dentist-patient agreements, financial services, and many other agency situations, like getting your house sold or repaired, etc. It's cropping up a lot in sales of goods, too - especially high cost items.

Binding arbitration can offer some advantages to litigation, in terms of speed and efficiency, but just as with domain name disputes, the deck often gets stacked. Most of that fine print lets the person who wrote it choose the arbitrator, choose the location for the arbitration (wherever the company's counsel is located, often a plane flight away from where you are), and even the rules for the arbitration. Now, many times these are ostensibly neutral - the arbitrator and rules are adopted from the standards set for by the American Arbitration Association - but the location for the hearing is rarely convenient for the non-drafting party (i.e., you).

The subtler problem is what you see here with domain name disputes. Arbitration firms aren't stupid, they know who butters their bread. If their firm has handled 200 arbitration cases from a particular HMO in the past, and that HMO comes before them yet again with a malpractice dispute, it's entirely possible they are going to feel just a -hint- of pressure to avoid a ruling that pisses off their repeat customers, even though both sides are splitting the fee, in a display of "fairness."

Privitizing justice runs the risk of selling it to the highest bidder, whether it's domain names or medical malpractice. Many mediators and arbitrators are entirely fair - or at least think they are. But there's a reason that extra-judicial dispute resolution is getting increasingly popular among those that are usually on the "defendant" side of the dispute.

At least the can get their's

[satanami69]

eResolution v. eResolution.com There is nothing in the spirit or substance of American law that could ever justify the expropriation of one person's rightful property in order to transfer ownership to some other person, based on the argument that the original owner had not yet "done anything" with his property other than simply holding it, whereas the other person has intentions and/or plans to put that property to some commercial use.

Re:At least the can get their's

[Stiletto]

You know, I've never looked at ICANN's rules until I browsed that link you just posted. The case seems pretty straightforward to me. A cyber-squatter got squashed.

Paragraph 4(c), which the "respondant" can use to defend the domain name, seems pretty easy to satisfy:

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Note that this is a logical-OR. If you can claim any of the above you get to keep your domain. This guy didn't fall under any of the categories.

I must admit though, I don't like the terms "bona fide" or "legitimate" in the rules. It would be nice if they could define what a "bona fide offering of goods" is or what "legitimate noncommercial use" means. Maybe they do in another portion of the rules--I didn't read that far :-)

Re:At least the can get their's

[dillon_rinker]

Yes there is. Congressional land grants in the 1800s were dependent on your improving the land. If you didn't improve the land, you didn't get to keep the land. So you go to the registrar (Congress) and request your domain name (parcel of land). You receive it and don't post any actualy content (build structures / farm the land). You lose the domain (the land grant).

This was also the legal justification for taking lands from the American natives - they had not improved the land. They had a Biblical imperative to farm or work the land; since they weren't doing so, they had no right to the land.

I am a firm believer in the principle that if you don't use a scarce resource to benefit everyone, and if someone else will, then they should be the owner. Property ownership is not natural; it is the product of the laws of our civilization. The laws should benefit everyone and not a select few individuals.

WHAT?!

[The Smith]

From the article:

The firm, one of four accredited under ICANN's Uniform Domain-Name Dispute Resolution Policy (UDRP), said that the policy under which those filing complaints get to choose the arbitrator encourages businesses to seek out the referee they believe is most likely to see domain-name holders as cybersquatters. [my emphasis]

I don't believe it: the plaintiff actually gets to choose which arbitrator will try the case, and the defendant has no say! This is like the MPAA being allowed to select which `justice' they want to try their court cases.

Hey, wait a minute...

Problem with the arbitration system

[fhwang]

The biggest problem is that under ICANN rules, only the person filing the complaint has any say as to which arbitrator is selected. The person defending against the complaint has no power whatsoever in deciding who the arbitrator is. So the complainant will pick an arbitrator with a history of favoring complainants.

Well, duh. Of course if you give only one side the ability to choose the adjudicator, then the odds will be completely skewed. A sixth-grader could design a more fair system.

Re:why are there more than one involved?

[pagsz]

Well, hopefully by having such a random selection you would get a more balanced organization. Of course there would always be some trade-mark friendly ones, but there would also be anti-trademark ones and the rare impartial ones.

By having only one organization, trademark holders can't shop around for the friendliest one. They are forced to go to one organization, which may or may not be friendly to their needs.

Also, let's say that this solo orgainization is trademark friendly. It may not stay that way as members come and go (mostly randomly). So there could be runs of pro- and anti-trademark rulings, but the trademark holder could never be sure which they were going to get. This contrasts with the current system, where trademark owners know there are certain places they can go for a friendly ruling.

No solution is perfect, but this announcement certainly shows that the current one doesn't work. IMHO, a single arbitration orgainzation would be the best solution.

That's just the way I see it,

Re:It's all so arbitrary...

[MeNeXT]

I don't get your humor. The issue is that some words belong to the language and were defined prior to a trademark. If this word is not being used within the same industrie to misslead the public then why not on a first come first serve basis. A good example that comes to mind is the word ajax. Which was being used by an ISP on a .NET and the trademark holder of cleaning supplies took them to court.

WORD is a trademark of MicroSoft and has been used in this comment without permission. If you feel offended please replace WORD with OPEN OFFICE. Thank you for your time.

Why the Lawyer Bashing?

[sbarber]

From the article:

Said EResolution President Karim Benyekhlef: "It is but an open secret that lawyers advising their clients in domain name cases have no scruples about quoting the figures and saying that the odds are better with a given provider."

Why are the complainants' lawyers to blame for this? The ICANN rules let the complainant pick the arbitrator. In the US at least, an attorney has a ethical obligation (which are enacted as statutes or regulations in most states) to zealously represent a client's interest. Picking an arbitrator that rules less often for the complainant is arguably a breach of that obligation. In fact, the attorney who didn't do this could be sued (probably successfully) for malpractice and potentially disbarred or sanctioned by the state. Thus, by the admittedly a bit counterintuitive logic of the legal system, it is entirely scrupulous of the lawyers to advise using a complainant-favorable arbitrator.

The problem is in the ICANN UDRP rules, which are blatantly unfair to the defendant.

Big business choose WIPO the hanging judge

[Garry Anderson]

eResolution admit that they cannot compete with the prejudiced United Nations World Intellectual Property Organization (WIPO.org).

Even their own Canadian government went to UN WIPO - "while claiming unfailing support for Canadian know-how in e-commerce" - rather than them.

WIPO are the provider of choice, winning most cases for the 'prosecution' - they are obviously corrupt.

Especially as they know the solution to these problems on the Internet. They could stop 'consumer confusion', 'trademark conflict' and 'passing off'.

The solution was ratified by honest attorneys - including the honourable G. Gervaise Davis III, himself a UN WIPO panelist judge.

This is very important, as virtually every word is trademarked - Alpha to Zeta or Aardvark to Zulu, most many times over. The word Apple is trademarked hundreds of times in the USA alone - I have yet to check it in the 200+ countries. Conflict is IMPOSSIBLE to avoid.

The solution involves giving trademarks a domain in the restricted TLD of .reg - to act as certificate of authentication.

So when consumer enters apple.com, they are redirected to apple.computer.us.reg.

When entered directly, .reg can be used as a directory.

The thousands of other trademarks using the word 'apple' may then use their mark without any of these problems e.g. apple.tld redirected to apple.record.uk.reg !

Please visit WIPO.org.uk.

Usual disclaimer for the litigation mad and greedy lawyers: All is my logically considered and informed opinion. However, in the last two years nobody has yet proved me wrong. Corruption has yet to be proved in a court of Law.

Nature of the Business -- Rules must change

[werdna]

Because the ICANN rules permit the petitioner to select the forum (the arb), is it at all unsurprising that when a lawyer (me too) is filing one of these things, she will obtain the statistics for the various arbs to determine which group, if any, is more pro-petitioner than another.

Since an arb result is unappealable, every arb result is final. There is therefore no downside for an arb to be pro-petitioner. Since the petitioner gets to decide which forum gets the fee, why would any arb panel ever consider doing anything other than hiring a bunch of pro-petitioner arbitrators, and eventually phasing out anyone who drops the panel's statistics?

For the respondants, by the way, the strategy is to pay extra for the three-judge panel. The statistics drop from something like 88% pro-petitioner for single-arb panels to mid-sixties.

And don't freak too much about the numbers -- the vast majority of cases I have seen are serious cybersquatting cases. Despite the statistics, I have yet to lose a case due to perceived bias, though I have seen some howler opinions elsewhere. I wonder if those result as much from poor or pro-se representation as from bad arbitration?

At any rate, the RULES create an inherently unbalanced world. ICANN, or preferably a panel responsible to the public, and not the petitioner, should select the panel by random drawing, and should supervise and investigate allegations of bias. Even though the decisions themselves are not reviewable, the arbitrator should be accountable to someone to do justice, not merely "help up the stats."