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

["William S. Lovell" <wsl@cerebalaw.com>]

Milton Mueller wrote:

Hi, Bill.

So, explain how someone can challenge a bad UDRP decision.
You're the lawyer. What's the legal grounds if a TM owner
disclaims any intention to file a TM suit?

Hi, Milton -- Long time no see!

Anyway, question is, where does anyone get the authority to send
me something in the mail ("e" or otherwise) which tells me that I
have to give up my domain name? Well, I signed a contract that
says so!  So where did that contract come from? The UDRP and
ICANN.  Is that contract any good?  To have a valid contract,
one must provide consideration.  I have, or have control of, "A"
-- which is the domain name you want.  You have "B," which is
money.  You give me B and I'll give you A.  But for me to "give"
you A, I must have had ownership or control or whatever over
the domain name in the first place; I must have got it from somewhere,
and that, of course, takes us back to ICANN.

That's where it gets to be fun. From whence cometh its authority
to control domain names all over the world?  From the USG?
So where did it get the authority to control domain names all
over the world?  I've previously given the example of the Patent
Cooperation Treaty -- within the last hour I sent off a bunch of
claim amendments to the International Bureau at WIPO, with
respect to the countries U.S., Canada, Mexico, Japan, China,
India, Europe (we'll identify the particular countries later),
Singapore, Republic of Korea, Brazil, Thailand and Indonesia.
The whole thing works peachy keen, if things go right at the PCT
I'll "get" (??) to follow up with individual patent applications in
each of those countries, and, assuming that things go okay at the
PCT, every one of those countries is bound to accept the patent
application that they receive -- no ifs, ands, or buts.  Why?
Because a treaty was negotiated and all of those named countries
(and a whole lot more) signed on. There is no such international
authority which gives ICANN the right even to haul out the trash.

(I'll mention just in passing the issue of the authority of the U.S.G.
even as to events within the U.S.: our Federal Government is
one of delegated powers, and powers not delegated in the
Constitution are reserved to the States, or to the People.  What
is the Constitutional provision that gives the U.S.G. any power
over domain names? Heh, heh!)

Bill Lovell

>  
> >>> "William S. Lovell" <wsl@cerebalaw.com> 05/21/01 01:41AM >>>
> 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