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

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

Didn't actually mean for it to sound so harsh. Just popup rage I guess. I
think it's when the post is emailed to me and cc'd to the list.

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: Wednesday, July 04, 2001 3:47 PM
Subject: RE: [ga-udrp] FW: Non-member submission from ["Rothnie, Warwick"
<WarwickA.Rothnie@msj.com.au>]


> Mallesons Stephen Jaques
> Confidential communication
>
> Sorry about the receipt confirmation.  This only seems to be happening
> for you: I don't get anything from anyone else, but I think I can
> suppress the request (which is automatically generate) at this end.
>
> Thanks for the examples: at least I've got something to go away and
> think about.
>
> Warwick 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 7:30 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>]
>
>
> 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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