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unix.com Wins Domain Dispute
kyler writes "Apparently unix.com was able to afford the lawyers to fight off X/open from stealing their domain name in the wipo domain dispute.
If the domain unix.com doesn't violate the UNIX trademark, what gives them the right to take unix.net away from me and unix.org away from Michael? This is ludacris" We had the story about unix.org losing their battle so this is a Good Thing.
Although many cases of domain disputes are clear cut, such as the one between etoy and etoys, where one should be allowed to keep their domain, this is quite different.
You'll notice that the unix.com domain was registered by these people in May 2000. Obviously they knew the word "Unix" has been a trademark of the X/Open group for many years.
For them to register unix.com is incredibly misleading to anyone who may expect an offical Unix company website there.
The administrators of unix.org and unix.net have more rights to their domain names as they are not flying under the banner of a "Unix company".
So, it's another stupid domain resolution. They just seem to have it completely backwards!
They chose, `notorious'. That's kinda sweet.
- SMJ - (It's not just a name: it's a bad aftertaste.)
When I visit www.unix.net, I get a picture of a pixilated finger, and the words, "Fuck You Open Group."
As "ludacris" as it might seem, I don't believe this is the type of site that WIPO is going to take seriously in a domain arbitration hearing. I don't care how rich you are, you can't lawyer away the middle finger.
This is ludacris
hell no nigga it ain't. This is Ludacris, foo'. Check yo spelling, y`all sucka MCs meant ludicrous.
Ahem...
This is Ludacris and i've never heard him mention unix while rapping... did you mean ludicrous perhaps? ;)
- ... so this is a Good Thing.
Surely we can make up our own minds about that.Remember, everyone -- this is just some guy's opinion and not a fact.
Notice the dramatic difference here between results of three-judge panels (unix.com) and an individual arbitrator (unix.org). The published statistics show that single-judge arbitrations tend to be dramatically slanted pro-Complainant, with more balanced (but still generally proComplainant) results arising from a three-judge panel.
The Complainant gets to pick the arbitration house -- and will invariably pick the one with the strongest published pro-Complainant statistics. The respondant cannot challenge that choice, but under the rules may opt for the three-judge panel.
From Neo (Admin of Unix.com) on their forums:
A few facts:
* We registered the UNIX.COM domain in 1993 in good faith.
* We only registered UNIX.COM (UNIX.NET and UNIX.ORG were registered by others)
* We have spent well over $25,000.00 on UNIX related legal fees.
* We have spent many more thousands of dollars to maintain this site so that all people can freely discuss UNIX related issues without commericals.
* We have spent a lot of $$$ to promote free speech regarding UNIX and UNIX like operating systems.
* UNIX is a generic term regardless of X/Open's claim.
* X/Open's false claim hurts the world UNIX community because it creates a negative environment and fragments the community with harsh actions that are, in reality, anti-open.
* We do this because we love the UNIX philosophy and the true UNIX community.
This is my gift to you, each and everyone of you.
From the bottom of my heart. - Neo
On a side note, does the date of the trademark in relation to the registration date of the domain have any correlation then?
Read the UDRP, version 19991024, and the resolution rules. An action in bad faith, such as reverse domain name hijacking, will be thrown out.
What's to stop me from trademarking the name after the fact and petitioning for ownership of the related domain names?
You run a risk that such action would be considered reverse hijacking, defined as "using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name" (Resolution Rules) (emphasis by yerricde).
Ludacris
Will I retire or break 10K?
"We had the story about unix.org losing their battle so this is a Good Thing."
Isn't it great that we have the editors at Slashdot to break things down to simple terms? All I need to do to make up my mind is look and see if it is a "Good Thing" or a "Bad Thing."
I read through the decisions for the unix.com and unix.org cases, and can see some parts of the answer to kyler's question If the domain unix.com doesn't violate the UNIX trademark, what gives them the right to take unix.net away from me and unix.org away from Michael?
The unix.com domain had been in use for some time for a discussion forum where the main topic was unix, they kept their domain registration despite it including the trademark. The unix.org domain had not been actively used for anything, and the information provided about what it had been intended to be used for was seen by the arbitrators as indicating an intent to make money as a result of attracting visitors, with the unix trademark being part of what attracted visitors.
The argument about 'unix' having become generic failed in both cases.
The arbitrators seem to be deciding on the basis of whether or not the domain is actually being used for some legitimate purpose. Mere ownership of the trademark does not seem to be enough for victory. It is good that the holders of unix.com won, but if the report of the unix.org case is accurate as to the facts, then I think that was a reasonable decision.
I also tracked down the decision for the unix.net case http://arbiter.wipo.int/domains/decisions/html/200 2/d2002-0296.html, and among the things it says is The Respondent failed to file any evidence that might lead the Panel to the inference that the Respondent has rights or a legitimate interest in the domain name. Not having seen the site in its original form I can't tell for myself whether or not the arbitrators are right to judge that there was no legitimate interest. They seem to have formed the opinion that the site was really a web designer advertising their services, and using someone else's trademark to attract visitors. Perhaps someone who visited the site in its old form can comment.
In both the unix.org and unix.com cases, the panel said that X/Open had undisputed rights to the UNIX trademark, which covers unix.*. Unix.com refuted the bad faith claim, as it has been a viable, non-commercial web site since 1993. Unix.org, on the other hand, was a brand new site with nothing but links to commercial Unix-related sites.
I disagree that unix.org was registered in bad faith, but the battle lines have been drawn.
The fight is now on for Eunuchs.com. I hope they have money left!
Well, I don't think they'll(Eunuchs.com) have the balls to fight back against a big company like Open Source.
~ kjrose
Far more useful is to type what you're looking for into Google. Lately, the I'm Feeling Lucky button has just been uncanny.
Why fight over namespace when the real value is in Googlespace?
The respondent makes a pretty good argument that the word "UNIX" has become generic and every computer professional I've ever known has used the word in a very generic fashion. I wonder if a preemptive lawsuit might be filed to have the trademark removed from the word...
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Actually, the follow-up to the canadian.biz case (which was part of the same original post discussing the unix.org dispute) was posted a couple of weeks ago, just not on the front page.
In summary, the original registrant (a Canadian citizen) was able to convince a Canadian judge that "Canadian" does not mean beer alone and was able to block Molson from hijicking the canadian.biz domain.
In his decision, the judge stated that "simply because a domain name is identical or similar to a trademark name should not result in the transfer of the domain name to the trademark owner. In my view, unless there is some evidence that the use of the domain name infringes on the use of the trademark name, a person other than the owner of the trademark should be able to continue to use the domain name." He was also critical of ICANN's definition and use of the "bad faith" criteria.
It appears that ICANN and the registrar have respected the court decision, as the whois information has been updated with the original registrant's correct name and information.
Between this and the contrast between the unix.com and unix.org cases, it certainly proves that ICANN is inconsistent in their rulings, and aren't considered (by at least one court) to have a very good handle on trademark law. Hopefully these decisions can be used as inspiration/precedent for the unix.org people to appeal so (just maybe) we can see two good news follow-ups from one bad news slashdot post.
My next sig will be ready soon, but friends can beat the rush!
A couple of things to consider.
:) You don't hire programmers to defend your rights in court :)
(1) If you get into a UDRP dispute, hire a good UDRP lawyer.
(2) I recommend our unix.com attorney, Dr. David Steele (www.cph.com)
(3) Legal disputes are just like complex problems in your OS kernel: You don't hire lawyers to write a kernel driver
(4) UNIX.COM won because the domain was registered in 1993 (in good faith) for good reasons (including the non-commerical technical forum www.unix.com) AND we had excellent legal counsel.
(5) WIPO is not the proper authority to rule on the details of a trademark (generic or not). WIPO rules on WIPO guidelines.
BTW: Thank YOU Slashdot-gurus for all the moral support over the years!!! -Neo
www.unix.com
I'm going to pretend that this post really is "interesting" and not "flamebait": Trademark allows for the development of a business identity. It prevents other people from making money off of your good name. It is generally limited to areas where someone is using a confusingly similar name that would lead customers to believe they are getting the "real thing" but they are not. It does not extend to unrelated business areas where a reasonable customer would not confuse the names, nor does it extend to every use of a word, though corporations often try to make it so. So, for example, I might be able to get away with selling "Olde MacDonald's Scotch Whiskey" without infringing on the trademarks of McDonalds resteraunt chain, nor 3M's Scotch brand products. Mount Olympus Camera Co. would not fly, but Mount Olympus Software, probably would. I might be able to sell "Unix Cheese Puffs" and "Unix Caffiend Cola" if the judge doesn't think I'm trading on X/Open's good name.
My point is that X/Open do not own the word "Unix" they just some rights to exclusive use of it as a name for an operating system, and related things. THAT DOES NOT GIVE THEM THE RIGHT TO THE DOMAIN NAME. What we don't want is people squatting on a domain, with no use for it other than to hold it hostage and to sell it to a party that does have use for it. That doesn't mean that a trademark holder is the only party with a legitimate interest in the domain, nor should their claim automatically be more legitimate just because they have a trademark. If I register NBC.* as a site or sites for Nehalem Baseball Club or some such before National Broadcasting Company does, they shouldn't be able to take it away from me.
Don't moderate flamebait as Troll. Know the difference or you will be Meta-moderated.