Re: [ga-tm] Motion #6: UDRP review

[Eric Dierker <eric@hi-tek.com>]

There certainly is no right to appeal, per se.  However we all must
be mindfull of the new term "going postal".  Some time ago and beyond
my resources to conjure up was a man who stuck his head out the window
and yelled "I am mad as hell and I am not going to take it any more". 
There is a second one; "If it ain't broke don't fix it". and a third, "a
fool sir is still a fool and the mere fact you gather them by the multitudes
only aggravates the situation".

My point is that these niceties and vagueries only distract from the most fundamental question, How can we make the masses care?  I hate the TRIPS concept but who cares unless they have been burned by it like many in Mexico.

We need a mechanism to oppose the huge maniacal beast known as the IP constituency.

Your wisdom is appreciated,

"William S. Lovell" wrote:

Without having read the case and thus taking its description
at face value, the legal conclusions expressed seem not to be
correct. There seems to have been a procedural error by
someone, rather than any new, precedent-making law --
see below:

List Admin wrote:

From: Milton Mueller <mueller@syr.edu>
To: <ncdnhc-discuss@lyris.isoc.org>
Date: Sun, 20 May 2001 23:33:36 -0400
Subject: Motion #6: UDRP review

[snip]

 
3. We note with great concern that one US court has
decided that a respondent has no right to appeal a
decision by a UDRP panel to transfer a name.* If this
becomes a precedent, the procedural and substantive
aspects of the UDRP need to be substantially revised.

[snip}

* Judge Young (Mass District Court, USA) held that no
declaratory judgment was available to
the registrant of corinthians.com, including under the
ACPA, if the victorious party in the UDRP (the
trademark holder) disclaimed any intention to file a
trademark lawsuit of his own. There being exactly that
disclaimer, he then dismissed the case for failure to
state a claim.

In short, the * part does not lead to 3. There is a constitutional
requirement that for a Federal Court to have jurisdiction, there must
be a "case or controversy."  If the trademark holder disclaimed any
intention to file suit, then there is no trademark case or controversy,
and that kind of decision has been standard for decades.  But that
does not mean there could not have been some "other" case or
controversy that would have supported a case.  The obvious one,
of course, would be that concerning the authority and jurisdiction
of the UDRP process in the first place.  Consequently, the broad
statement that "a respondent has no right to appeal a decision by a
UDRP panel to transfer a name" is simply not true.
--
         Bill Lovell

http://cerebalaw.com/biog.htm