Yet Another Bad UDRP Decision

mrbrown1602 writes "According to a NewsBytes article, a Florida man named Peter Frampton had his domain, PeterFrampton.com, taken away thru the quasi-juduicial process established by ICANN for domain name disputes because he shares his name with a washed up rock star from the 70s. A copy of the WIPO decision can be found here."

Comments

This decision sounds right to me

[markwelch]

The notion that someone named "Peter Frampton" could lose the domain "PeterFrampton.com" sounds pretty bizarre, until you read the published opinion.

Though I don't agree with some of the statements in the opinion, I found it completely persuasive on the relevant points:

• The first registrant's real name was "Lyle Frampton" and not "Peter Frampton" (the court seems to accept that the registrant's full name is "Lyle Peter Frampton" but notes that no proof was actually given)

• The web site showed logos copied from the web site of the music artist Peter Frampton

• The web site contains commercial links to resellers of music and music equipment associated with the "famous music artist" and not the original registrant

• Although the web site does not offer the domain for sale, the web site's text (as quoted in the opinion) reads like a classic "join with me to exploit this famous domain" instead of being a page about the registrant (Mr. Frampton):

  Frampton Enterprises, Inc.
  Entertainment!/Income Opportunities!/Shopping!
  @ WWW.PETERFRAMPTON.COM
  A Monster Business Development Opportunity!
  Unlimited Income Potential!
  "A New Life" You Must See This!
  FRAMPTON4U@AOL.COM
  Please! Send: Your Full Name/Address/ Phone #/ Your Resume in Text Only!
  Then Call (ASAP)
  Mr. Frampton
  (727)584-0395
  For Your Lifetime Career Opportunity Interview!
  Now Hiring for Key Corporate Regional / Filed Manager Positions in USA.
  

The first-registrant is not some kid named Peter Frampton who posted a home page about his hobbies, nor a guy named Peter Frampton who engages in some business under that name. Instead, it is someone who doesn't normally answer to the name "Peter Frampton," and whose sole use of the domain is to exploit and profit from the professional fame of the washed-up music artist named Peter Frampton.

This doesn't sound like a close case to me, unless you hide or distort some of the facts as stated in the published opinion.

Re: Misunderstanding The Opinion

[markwelch]

>> There is a rather nasty precedent set here that a person does not have an intrinsic right to use their own name if

1. someone else has it also
2. that person is more famous than they are
3. they are both in similar businesses.

Sorry, wrong on two counts:

1. The first registrant was Lyle Frampton, not another Peter Frampton, and did not even identify himself as Peter Frampton when seeking business partners to exploit the PeterFrampton.com web site
2. Fame is certainly an aspect of the law and this ruling, though a huge disparity is required
3. This is not a case of two people in similar businesses. The first registrant (Lyle) was not in any music-related business, other than promoting sales (though links to commercial web sites) of items associated with the famous musical artist Peter Framption.

>> By this reasoning, If you are named William Gates, and are not the famous one, you better not start a website called billgates.com that has to do with software.

Absolutely correct: if the Microsoft founder registered his name as a trademark used in association with the sale of computer software, then "other" Bill Gates would likely lose, but the first Bill couldn't get the registration if the other Bill had earlier been actively selling software under that name.

>> There is a fair indication that the unfamous frampton was trying to cash in on the famous one's name, and this may indicate a certain amount of bad faith. The remedy was wrong, however. At worst, the site might have been required to say, "We are not associated with the untalented former guitarist of the Eagles, Peter Frampton".

I think the "bad faith" is pretty severe, in this case, but I also agree that there are some troubling aspects to the law and some of the analysis in the published opinion.

>> A person should always have a right to their own name. You'll also note that the respondent was 61 years old. He has a claim of prior usage! On the other hand, in reading the complaint, it does seem that the respondent was a bit of a loon.

Yes, never under-estimate the "loon effect" in litigation. Loons usually lose, often simply because they are too loony to argue their case effectively.

I found it troubling (but the court apparently did not) that Lyle Frampton failed to present any evidence that he has ever been known as "Peter Frampton" or that Peter is his middle name. No driver's license? No birth certificate? No deed to property? Nothing at all?

I simply don't view this as a bad decision, but I certainly will defend to the death (okay, maybe not quite that far) my right to control and maintain my domain name at MarkWelch.com -- it is my name, and indeed I am pretty famous online under this name.

If some 17-year-old named Mark Welch burns some rap CDs, even if his album becomes the best-selling live album of all time, and then if in 2003 the punk registers his name as a trademark for music sales, and then sued to take over my domain name, I would be quite annoyed at having to fight, but the law is pretty clear that I would win and I would get to keep my domain name -- unless I decided to flush all my current content and create a page that just promotes the rap music and profit from the other fellow's reputation.

There are other Mark Welches out there, hundreds of them. At one time, I even created a domain at MarkWelch.net to help people find the "right" Mark Welch they were looking for (then my ISP went belly-up and I lost access, and didn't want to jump through Verisign's hoops to regain control).

Read the law, read the opinions in these cases.