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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."
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 fact that IP owners get to pick the arena for the legal fight is a crock of shit... and in my opinion should cast a lot of doubt on any decision handed down by WIPO, who always vote with only business consideration in mind (the few cases where they have allowed the copyright holder to keep their domain, it was because they felt that the incumbent had a useful business reason for keeping the domain).
The US courts might not be the most fair organizations, but I'd imagine that they'd be a hell of a lot better then WIPO.
autopr0n is like, down and stuff.
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.
For those of you who didn't read the story *ahem*
"If the parties aren't satisfied with the outcome of the judge's decision or the trials through the UDRP, they have the right to have it tried in court," said Mary Hewitt, an ICANN spokeswoman. "It's always been that way; it's written that way...It's absolutely the prerogative of the parties involved. Either way, whatever the decision is, it doesn't matter; they have absolutely the right to go to court following a UDRP" proceeding.
autopr0n is like, down and stuff.
Regardless of jurisdiction, he has an untenable case. The First Circuit Court of Appeals didn't rule on the merits of the case, simply ruling that the US courts have jursidiction, something that both US law and ICANN's UDRP agree on.
For background on the case, see this article on slashdot, or these cases on WIPO's site. In a nutshell, he registered domains for two Brazillian soccer teams, Cruizero and Corinthians. He approached Corinthians about selling the domain, they sent him a notice to hand it over. He then put up bible quotes, and claimed that they were stomping on his first amendment and freedom of religion rights, but lost in UDRP proceedings.. It doesn't help his case that the registrant for his domains was "prestige domains (for sale)", nor does it paint a good picture that he registered dowjonesupdate.com and tonimorrison.com, though he handed over both of those without ICANN interceding.
This guy is a domain speculator, pure and simple. He (rightfully) lost two cases to the trademark holders, and he's not happy that he didn't get paid for being first to register the domains. Personally, I'm surprised the low-life found the nickles to rub together to retain a lawyer to put it to the courts.
The truth about Scientology, Xenu, and you: Operation Clambake
The World Intellectual Property Organization (WIPO) has ruled that U.S. Federal Courts do not have jurisdiction in domain names disputes.
There's a lot of folk on Slashdot who seem to have no clue about how international laws or politics work. Unfortunately that doesn't stop them from posting on here.
Virtually every international treaty is a voluntary agreement. Any country that doesn't like the provisions is free to quit. Don't like the WTO? Well, don't sign it. Don't bitch about other countries benefiting from it, though. Any country that feels a particular agreement is prejudicial to its interests is free to not accept it.
A world micro-government is precisely the wrong thing to do. There is no challenging the authority of such a government. There is nothing to prevent the more influential countries from ganging up to screw the others.
Look at things like the CTBT (Comprehensive (Nuclear) Test Ban Treaty) for example. Countries like India and Pakistan don't think that is fair to them because it allows countries like the US to keep their nukes while forcing them to give up theirs. So what do they do? They refuse to sign it!.
A world micro-government would force them to accept what (in their view) is an iniquitable solution.
There is nothing fundamentally wrong with the way things work right now. Yes, some countries are able to get more but that's only because they bring more to the table. And this is not about military power - I can't think of a time when a country was bombed because they didn't sign a trade treaty. This is about financial power. "You want access to the US's markets? Well, how much is that worth to you? What are you willing to give up for that access?" The only reason the US has more of a say in these affairs is because the other countries would rather let the US have the bigger say than drop out of the agreement.
Nothing is broken. Move along.
Mmmm.. Donuts
The arbitration under the UDRP is binding, to the extent that the registrar must comply with the result unless otherwise ordered by a Court of competent jurisdiction. Unless a losing party gets an order from a Court, the loser is out of luck.
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.
This only affect international disputes, say those in Canada.
To quote: "federal courts have jurisdiction over international domain name disputes".
ACPA and Lanham Act section 43(c) provide all the relief a nasty plaintiff might want in a domestic dispute. Nothing more is necessary. Any suggestion that the Court passed on or limited domestic complaints turns the case on its head -- this one addressed international complaints because the application of ACPA in that context raises significant constitutional issues under article III, and some treaty law questions.
This still won't take all the power away from WIPO and ICANN that it needs, but it's a step towards better arbitration. Domain names are not trademarks!
No, they are not. But once you use them in commerce, which is actually pretty not hard to do, that USE can give rise to trademark infringement. Even if it doesn't, there is a basis for a legal claim for dilution for ANY use "in commerce," even if it doesn't compete. Finally, even if none of those things happen, there is always a claim under ACPA.
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.