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

["NameCritic" <watch-dog@inreach.com>]

I respect your work on this, but I do have something to add I hope you will
consider, that domain names that existed BEFORE a TM was filed and approved
be excluded from UDRP proceedings as well. It cannot be in bad faith if the
domain name existed before the TM. There are cases where the TM was filed
after yet the domain name awarded to a complainant. Such is the recent case
of Aimster although there are other circumstances that warrant a second look
at that case the fact remains the TM on AIM by AOL was filed after the
domain name AIMSTER.com. In this case it just contains AIM in the name and
is not identical to the TM and the TM filed afterward. I would tend to
dispute AOL's claim to the domain name.

Also three years is a long time on the Internet. I support what you are
trying to do, but isn't two years sufficient and it should be that the
Registrant info hasn't changed instead of the admin contact. Things change
at a company and what if the admin contact moves to another job and is
removed from the contact in whois. Same Registrant still, different admin.
It happens. If it is transferred within two years to another Registrant
however it seems the period would start over for that domain name.

Just my thoughts for you to consider.


Chris McElroy aka NameCritic

----- Original Message -----
From: "List Admin" <patrick@quad.net.au>
To: "Milton Mueller" <mueller@syr.edu>
Cc: "[ga-tm]" <ga-tm@dnso.org>
Sent: Sunday, May 20, 2001 9:55 PM
Subject: [ga-tm] Motion #6: UDRP review


> 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
>
>
> UDRP Resolution
> Proposed for discussion at Stockholm meeting
> =========
> As policy advice, the Non-commercial constituency
> submits to the Names Council and the ICANN Board the
> following ideas for improving the UDRP:
>
> 1. Domain name registrations that have been held by
> the same administrative contact for three years should
> be exempted from challenges under the UDRP.
>
> 2. We note that statistical studies of the UDRP have
> shown that "forum shopping" by complainants exists in
> the application of the UDRP. This biases the results
> and needs to be changed. We encourage exploration of
> the following remedies:
>
> 2a: ICANN could provide domain name holders
> with some form of a declaratory judgment. Domain name
> holders should be able to initiate a UDRP proceeding,
> using the dispute resolution service provider of their
> choice, to obtain a finding that they have a "right
> and legitimate interest" in a name. Prospective
> complainants would be given a period of time to
> contest the claim.
>
> 2b. Registrars, rather than complainants,
> could select the dispute resolution provider. Such a
> selection should be done not on a case-by-case basis,
> but through contracts that would apply in a non-
> discriminatory fashion to all names registrered by
> that registrar.
>
> 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.
>
> 4. We oppose any extension of the UDRP to new rights
> in names, such as rights of personality, geographic
> place, and so on. The domain name system is a method
> of giving mnemonic names to Internet resources and of
> mapping information to those names. The proces of
> assigning domain names should not become overly
> burdened with regulations and legal and political
> baggage. Such a linkage of domain name assignment to
> global legal rights is inimical to the Internet's
> growth, freedom and stability.
>
> * 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.
>
>
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