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

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

I see that you missed some of the points made below. By rereading the post
in it's entirety I think you may have more to respond to since you stated
that  "you could hardly claim that meritorious registrants are being shut
out of the legal system."

Specific points to clarify;

1. If an Arbitration Service is allowing filings beyond those specified by
the UDRP and WIPO's Guidelines for an additional fee from Complainants, is
that an even system?

2. If the Complainant is allowed to Forum Shop, is that a fair system?

3. If the system allows for harassing complaints where Company A with a
great legal staff and a lot of bucks wants a domain name that Company or
Individual B has and files UDRP Actions and/or Lawsuits knowing that the
Respondant does not have enough money to defend the Domain Name, is that a
fair system?

4. Do you believe under a "Fair" Arbitration system that 84% of cases being
found for the Complainant is normal?

5. How can Person A. infringe upon Comapny B's TM if the domain name has
never been used in commerce?

6. Why has the Arbitration Services declared dilution as the reason for
infringement for Non-Famous TMs?

7. Why is the fact the Respondant hasn't built a website yet considered
proof of a bad faith registration? Where, when filing a domain name does it
say the Registrant must EVER build a website in order to keep their domain
name?

8. Why has the fact that a Respondant doesn't own a business of the same
name as his domain name been shown as proof of a bad faith registration?
Again where in the agreement with the Registrar does it say you must own ANY
company to register a domain name? (Besides in the duplicate and infringing
Neulevel dot biz tld)

9. Can you point me to the place within the law of ANY country or within the
USPTO where it states that a TM Holder has the rights to all uses of the
words or letter strings they registered regardless of what classification
they registered the TM in?

10. Can you point to any similar links to statements that give a TM Holder
rights to all variations of the string they hold a TM over?

11. Can you show me where in the UDRP it says that a Registrar can strip a
Respondant of their domain name and give it to a Complainant without the
Arbitration ever occuring at all?

12. Can you show me where in IP Law or the UDRP that pointing a domain name
to a porn website is proof of no legitimate interest in the domain name?

I am sure that it was my mistake you didn't recognize the duck. It is my
sincere hope that numbering the ducks will help.


Chris McElroy aka NameCritic

----- Original Message -----
From: "Rothnie, Warwick" <Warwick.Rothnie@msj.com.au>
To: "NameCritic" <watch-dog@inreach.com>
Cc: <ga-udrp@dnso.org>
Sent: Tuesday, July 03, 2001 9:54 PM
Subject: RE: [ga-udrp] FW: Non-member submission from ["Rothnie, Warwick"
<WarwickA.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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> >
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