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

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

Since this is a public list can you please get rid of the need for me to
confirm receipt of each email you post?

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 11:38 PM
Subject: RE: [ga-udrp] FW: Non-member submission from ["Rothnie, Warwick"
<WarwickA.Rothnie@msj.com.au>]


> Mallesons Stephen Jaques
> Confidential communication
>
> Apparently, there is a duck in your questions but it seems to be a verb
> and not a noun: no attempt to identify particular cases or what
> proportion the disputed cases make up of the whole.
>
> Warwick A Rothnie
> Partner
> Mallesons Stephen Jaques Melbourne
> Direct line (61 3) 9643 4254
> Fax (61 3) 9643 5999
>
>
> -----Original Message-----
> From: NameCritic [mailto:watch-dog@inreach.com]
> Sent: Wednesday, 4 July 2001 4:06 PM
> To: Rothnie, Warwick
> Cc: ga-udrp@dnso.org
> Subject: Re: [ga-udrp] FW: Non-member submission from ["Rothnie,
> Warwick" <WarwickA.Rothnie@msj.com.au>]
>
>
> 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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