Slashdot Mirror
WIPO Dispute Decisions Contestable In U.S. Courts
Thu Anon Coward writes: "Yahoo is reporting that the 1st U.S. Circuit Court of Appeals in Boston has said that WIPO domain disputes can be contested in court. A domain name holder may file a civil action suit in U.S. courts. Apparently we can thank the 'Anti-Cybersquatting Consumer Protection Act,' signed by former President Clinton."
However, this also means that if they happen to make a good decision in favor of the little guy, a big company can then tie it up in court and cost them millions in legal fees.
Hopefully, anything that gets taken to a real court will be decided quickly, because the situation is usually pretty simple and the courts should be able to affirm or reverse a decision without too much heavy thinking.
This has always been the case, the UN has no direct legal authority to do anything at all, unless it involves wars between different countries.
WIPO arbitration has always been that, arbitration. Not legally binding. (of course, who knows what kind of contract stuff you implicitly signed on for when you purchased your domain)
The UN has no jurisdiction whatsoever, but the analysis fails from there going forward. Registrars under the ICANN must have registrants contractually bound to the UDRP, which means that the ICANN-sponsored arbitrators arbitrate the "ownership" of the domain name -- which is just a contract between the registrant and registrar to maintain the DNS records.
The arbitration result is legally enforceable in the United States, without review on the merits, as the arbitration is a final, unreviewable, determination on the merits of the CONTRACT between the registrant and the registrar. This doesn't mean that a losing complainant couldn't sue under ACPA, unfair comeptition and trademark law after losing, to enjoin the USE of the domain name by the registrant.
Oddly enough, the first circuit held that ACPA appears to effectively 'horn in" on that process, and would certainly preempt contract law to the extent that it does.
But make no mistake, UDRP dispute resolution is hardly a non-binding process. If a court order isn't sought and does not issue, a lost domain name is gone, gone, gone.
The authorities have always known the obvious solution. I have been using WIPO.org.uk as the best domain name to get the message out ;-)
The United Nations World Intellectual Property Organization (WIPO.org) and the United States Department of Commerce (DOC.gov) are hiding the simple solution to trademark and domain name problem.
The US Patent and Trademark Office virtually admitted this, August 22, 2000: "The questions you raised with respect to trademark conflicts, as well as the proposed solutions, have their basis in good common-sense. As such, they have been debated and discussed quite exhaustively within the USPTO, the Administration, and internationally."
A restricted TLD is required to replace the trademark symbol. The solution was ratified by honest attorneys - including the honourable G. Gervaise Davis III, 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. MOST share the same words or initials with MANY others in a different business and/or country.
For example, the World Trade Organization (WTO) shares its initials with six trademarks - in the USA alone. Conflict is IMPOSSIBLE to avoid.
The US Department of Commerce allow this conflict to continue purposefully, knowing they abridge peoples right to use these words - even the common words you learnt with your A B C's - apple, ball and cat. You cannot make your own small business using a dictionary word, it is bound to conflict with some trademark or other - check yourself. People also cannot make fan sites or protest about corporations (one of reasons why they do not want it). This violates the American Department of Commerce own First Amendment.
The authorities are allowing certain trademarks to be abused by their owners, giving them dominance over others using same words. Example; Caterpillar tractors claimed 'cat' is 'their' trademark on the Internet - even though there are hundreds of trademarks using the word 'cat' - IN THE U.S. ALONE. The United States Department of Commerce and the World Intellectual Property Organization do not seem to mind that all trademarks fight it out - or that one has this illegal dominant position. This is against unfair competition law.
For the TM lawyers - yes, I know about classifications. Please visit WIPO.org.uk - nothing to do with UN WIPO.org.