RE: [ga-udrp] FW: Non-member submission from ["Rothnie, Warwick" <WarwickA.Rothnie@msj.com.au>]

["Rothnie, Warwick" <Warwick.Rothnie@msj.com.au>]

Mallesons Stephen Jaques
Confidential communication

The person currently identifying himself as NameCritic said:

>Yes I CAN say Registrants arew being denied equal legal representation
and
>treatment. To not see that is to bury your head in the sand. All one
has to
>do is read the cases and how they were decided and the summaries and
>conclusions to see that TM Protection is seriously stretched into
something
>much more than the courts have allowed in the past and way beyond the
>protection the USPTO gives to them.

Which cases are you specifically concerned about and what proportion of
the decisions do they constitute?  For example, there are frequent
references by critics of the UDRP to the end of the world aka as
barcelona.com, but things would seem to have moved along quite a long
way in brisbanecity.com and brisbane.com.  

Does this stretching "into much more" take into account what the courts
in the USA have been doing under the anti-cybersquatting protection act
or is that, for some reason I have missed, not a "legitimate" law in the
USA?

In short what is it that is quacking that you can hear?


Warwick A Rothnie
Partner
Mallesons Stephen Jaques Melbourne
Direct line (61 3) 9643 4254
Fax (61 3) 9643 5999



TMs have classifications. Domain names do not. A TM does NOT give
someone
all rights to a particular string of letters. It only protects that
string
in it's use in commerce in the classification for which it was filed.
UDRP
actions have consistantly ignored this fact and stolen domain names from
Registrants. Yes I said stolen. I don't beat around the bush. If it
looks
like a duck and walks like a duck . . .

Domain Names are taken that HAVE NOT been used in commerce at all and
TMs
have been given victories based on dilution of a famous mark when the
marks
would never be considered famous in a court of law.

Respondants have been turned down for court appeals of the UDRP
decisions in
some cases while I have never heard of the same happening to a
Complainant.
I am already looking an example so don't bother asking. When I find it
I'll
post it. There was one in recent news so it shouldn't be difficult to
find.

In one of the Arbitration Services I have heard they will, for and extra
$250 accept additional filings from a Complainant after both sides have
been
heard.

The Complainant can Forum Shop. There is NO appeals process. There is no
committee to oversee the actions of the arbitrators. 84% Victory rate
for
Complainants overall. Using NO use of a domain name as Bad Faith and
finding
that a TM was infringed upon. With NO commercial use. Give me a break
here.

Spin on my good man.

Chris McElroy aka NameCritic

----- Original Message -----
From: "Rothnie, Warwick" <Warwick.Rothnie@msj.com.au>
To: <ga-udrp@dnso.org>
Sent: Tuesday, July 03, 2001 4:40 PM
Subject: [ga-udrp] FW: Non-member submission from ["Rothnie, Warwick"
<WarwickA.Rothnie@msj.com.au>]


> Mallesons Stephen Jaques
> Confidential communication
>
> Erik Dierker said:
> >
> > > > > I for one like existing laws
> > > > >and would like to see them enforced and if an UDRP did this I
> would
> > be
> > > > all for
> > > > >it, otherwise it looks like a mechanism for circumvention of
> > Sovereign
> > > > and
> > > > >legitmate laws.
> > > >
> > > > Since the UDRP expressly contemplates parties pursuing their
> rights
> > on
> > > > the courts, however, courts will not consider that the
sovereignty
> > of
> > > > the laws has been circumvented.  That is the point of allowing
> > parties
> > > > to resort to the courts.  Many arbitration agreements, which are
> > upheld
> > > > by the courts, go even further than the UDRP and preclude court
> > action
> > > > over factual findings.
> > > >
> > > > Warwick A Rothnie
> > > > Partner
> > > > Mallesons Stephen Jaques Melbourne
> > > > Direct line (61 3) 9643 4254
> > > > Fax (61 3) 9643 5999
> > > >
> > >
> >
> > >I am sorry to have confused you but I think we are talking apples
and
> > oranges
> > >here.  If I sign a valid arbitration agreement with you and it
states
> > that the
> > >exixting Trademark Law will govern on any issue of my right to a
name
> > as opposed
> > >to someone elses, and we arbitrate and the arbitrators missapply
that
> > existing
> > >Trademark Law on a consistent and reliable manner to the benefit of
> one
> > interest
> > >group that is in violation of the sovereign laws of the State.  Add
> to
> > that
> > >Monopoly, add to that adhesion contracts add to that Violations of
> the
> > MOU with
> > >the DoC.
> >
> > >So they have done an end run and circumvented the laws. Notice I
used
> > the term
> > >circumvention and not violation before. But, add all this to ICANN
> now
> > getting
> > >into the business of telling countries they have to follow ICANNs
> UDRP
> > and you
> > >have a flat out violation of law as established by treaty.
> >
> But surely that is just like any arbitrator making a mistake (assuming
> there be one) and the aggrieved party getting an appropriate court to
> review and, if necessary, rectify.  The UDRP provides that safety
valve
> in spades and in the USA (home of plaintiffs' lawyers and contingency
> fees), you could hardly claim that meritorious registrants are being
> shut out of the legal system.
>
> Warwick A Rothnie
> Partner
> Mallesons Stephen Jaques Melbourne
> Direct line (61 3) 9643 4254
> Fax (61 3) 9643 5999
>
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