Re: [ga] UDRP Questionnaire

[Sandy Harris <sandy@storm.ca>]

Sotiris Sotiropoulos wrote:

> > For this, the problem is not defining "domain name" as you seem to
> > think. We have a perfectly adequate definition.
> 
> Again, where is it?

See the RFC.
 
> > What we lack is a
> > fair and effective procedure for handling the conflicts that arise.
> > UDRP was supposed to be that, but it seems to be failing miserably.
> 
> Can you tell us how it's failing and why?  Please be a littlemore specific... Do
> you mean to say that you agree with the observation that the UDRP favours the
> claims of big business over smaller businesses and individuals?

Certainly, though I think perhaps you understate it.

I'd say the UDRP as currently set up is a barefaced piece of cheating by the
'Intellectual Property' interests, grabbing 'rights' they do not have in
any nation's law.
 
> > I think there are two obvious things we could fix in UDRP.
> >
> > First, it is binding on the domain name holder (because the registrars
> > will enforce the decisions and their contracts include the UDRP) but
> > not on the complainant. Make it binding on the complainant, adding
> > suitable legal language to the complaint form.
> >
> > Second, make it utterly clear that non-conflicting use is fine. For
> > example, the bodacioustatas.com case should have been laughed out of
> > court, and the only attack on ibm-sucks.org that a UDRP panel should
> > even listen to would be one from a critic complaining that IBM had
> > registered it to squelch criticism. That, they should grant instantly.
> 
> Your two "fixes" are good suggestions, but they are rather vague.  In particular,
> the second proposition seems rather weak, epecially when one considers the nature
> and scope of conflict in a linguistic context.  This is why evidence of bad faith
> must be something more substantial than simply a similarly spelled string.

What I meant in the second was that the burden of proof must be on the
complainant. 

e.g. Tata use their trademark for lots of industrial stuff, including most of
the trucks in India. If bodacioustatas.com started to sell trucks in India,
they'd have a clear case. If it sold something vaguely related (e.g. generators),
or if it were selling Indian imports in the US, then confusion might arise and
they'd have something worth talking about. However, they have no case against
a porn site -- not even one named tata.com -- any more than Sun Oil can sue
Sun Microsystems for trademark misuse.

On the same principle, ibm-sucks.com could not easily be confused with an IBM
site so IBM have no cause for UDRP action against such a site. Of course, they
can sue for libel, or prosecute for theft of trade secrets or ... if that seems
warranted, but that's not our problem. On the  other hand, having IBM own that
name could create confusion, so a UDRP action by a critic to grab the name from 
IBM should succeed.

I think there are two stages to this. First the compainant has to demonstrate
the existence of a conflict in something like trademark law. The question of
'bad faith' does not even arise unless there's a clear conflict.

I'd also like to see three possible outcomes from a UDRP ruling.

Complaint denied, and the complainant is going to have a hard time going to
court since he agreed that the UDRP procedure was binding.

Complaint accepted and (former) domain name holder is going to ...

No ruling. The complainant appears to have at least enough of a case to
argue about, but it is not clear enough for UDRP to summarily rule on.
Take it to court or drop it.
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