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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."
I hear that the founders are starting up a new company: the "Our premiums are really low because we *never* pay out" insurance company ;-)
Tales from behind the Lagom Curtain
While we are on the topic of ICANN...
Here is the ICANN weblog.
...it is about 1 year old.
How to Download YouTube Videos
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.
I really hate Dan Patrick.
Hey, wait a minute...
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.
Do domain names matter?
The actual reason there are multiple organizations to serve as arbiters was to try to balance the system in more fairness. The obvious question is fairness to whom, and I think the answer is pretty obvious: those who have the money and pay for this "service".
As far as I'm concerned, if someone wants to have a domain which I payed for, they should have to come here in front of a judge in MY jurisdiction and argue that it is theirs. Therefore if I disagree, I have means to appeal, and so on.
We have enough trouble keeping a sane justice system, let alone parrallel ones funded by plaintiffs...
"I remember Y1K, every abacus had to get another bead"
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,
-- If any of the above made sense, I assure it was purely by accident.
as to who gets the name....
Thanks to file sharing, I purchase more CDs
Thanks to the RIAA, I buy them used...
Comment removed based on user account deletion
"The patent office doesn't have to understand the technology. Look, its like this. If they have a question to grant or deny a patent - they typically grant. There policy recently with high-tech concepts/ideas is grant the patent, and let the courts handle the mess."
It is part of the requirements of their job to understand something about the technology. If they don't, how are they supposed to grant a Patent on it- rubber stamp it? And don't rely on the courts to sort it out- it's not really their job to understand the technology either so they won't know that someone in the USPTO rubber stamped something.
Somewhere along the time of when the Omnibus Budget Reconciliation Act (ORBA) of 1990 is when things started really going downhill. It was at that point in time that the USPTO started operating more along the lines of a private business (mandated by ORBA) instead of an agency. With them being understaffed for the job, combined with them deriving a good portion of thier budget from Patent grants, etc. it's a recipe for disaster.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
I'm not sure that I understand all of this. If the person filing the complaint can choose an arbitrator, then why isn't Slashdot an arbitrator? Or Stallman? Or Lessig? Or an Anonymous Coward?
Hmmmmm.
4.f. Selection of Provider The complainant shall select the Provider from among those approved by ICANN by submitting the complaint to that Provider.
OK. How do you become an approved provider? Well, the Approved Providers list is here. It says: "Additional providers may be approved soon. The above approvals are in effect until further notice at this web page" Nothing on how to become one.
Anybody have any ideas? I'd like to become a "Provider".
Sig (appended to the end of comments you post, 120 chars)
That used to be part of English common law, it was called "trial by combat". Although it was repealed in England, I've read that it might be possible to petition a judge for trial by combat in some American states, since the legal systems of most states is based on English common law. It would make those Microsoft antitrust cases a lot more interesting :-).
Mea navis aericumbens anguillis abundat
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.
eResolution admit that they cannot compete with the prejudiced United Nations World Intellectual Property Organization (WIPO.org).
.reg - to act as certificate of authentication.
.reg can be used as a directory.
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
So when consumer enters apple.com, they are redirected to apple.computer.us.reg.
When entered directly,
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.
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."