Re: 3 WIPO flaws [WAS Re: [discuss] Notes - Names Council Meeting, SanJose - 062599]

[Randy Bush <randy@psg.com>]

>>> A dispute policy can easily grant rights greater than what the law
>>> requires, although not of course greater than what the law allows.
>> could you give us one or two simple but interesting examples which might
> delineate some of the decisions we seem to face?
> 1) The WIPO draft in chapter 4 proposes an extensive set of procedures and
> advantages for a new class of globally famous names.   As no one has been
> able to agree to date what these names might be the definition of this
> class is not required by current law.  Furthermore, the advantages that
> WIPO  proposes to offer these marks are not required by current law.   Nor
> are they prohibited by it.

uh, this is not a dispute policy issue.  so let's save it for another time.

> 2) The WIPO report suggests that a DN holder should have 10 days from the
> date that an email notice is sent (not received) to draft and file his/her
> complete defense to a claim of cybersquatting.   This is a powerful
> advantage for the complainant, who has no duty to attempt to warn the DN
> holder of the impending action.   Furthermore if the DN holder is on
> vacation and doesn't read email for 10 days...I guess that  is it.

is this issue resolved by changing the number ten to thirty or sixty or
something, or are there deeper issues?  i.e. should there be a different
process entirely, one that strongly discourages cybersquatting yet does not
unduly burden other players?

> I would argue that this procedure is so unfair as to be unconscionable.

i conject that this is irrelevant because my pseudo-daughter now studying
for the bar tells me that lawyers have their consciences removed by their
second year of law school.  :-)

> 3) The WIPO report alleges that if a party is unhappy with the outcome of
> an ADR, thy can always take the matter to court.   While it is trivially
> true that an ADR can be structured to create no decision that is binding in
> court, it turns out that WIPO's account of the post-ADR procedure is
> missing some key elements.  In order to bring a complaint in a US court,
> you must be able to allege either:
> -breach of contract
> -tort
> -violation of a regulatory or statutory duty.
> 
> It seems to me that none of these will exist after Alice loses an ADR
> initiated by Bob:
> 
> a) There is no contractual claim.  For starters, there is no contract
> between Alice & bob; Alice might sue the registrar registry or
> arbitrators, but under WIPO she's had to waive the right to sue any of
> these parties already, so that's out.  In any case, the contract provides
> for an arbitration.   Absent fraud, that's what Alice got.  the fact she
> thinks a court would find differently is not a violation of the ADR
> agreement -- even if she is right.
> 
> b) It's hard to see what tort exists here.  There are a few speculative
> claims one might try, but as I've explained in detail elsewhere, they are
> all basically doomed.
> 
> 3c If Alice has no TM she probably has no statutory claims.  If Alice has
> a TM she shouldn't have been in the ADR at all, since it excludes TM vs.
> TM.

is there a fix?

> [Aside: a perverse aspect of WIPO RFC 3 was that it did include TM v. TM
> cases ...

but that is no longer relevant as wipo rfc 3 has been replaced?

randy