Re: [ga] Candidate positions on UDRP

["Bret A. Fausett" <baf@fausett.com>]

> Please provide the statistical basis for claiming that there is a pattern of
> bad decisions.  Is it one percent out of all the decisions?  Two?  Ten?
> fifty?

There are several people who are doing statistical reviews, but I don't know
whether the results are complete. To understand the problems statistically,
you have to carve the decisions up into categories. For those proceedings
involving strong marks, such as specially coined words or phrases, the
number of "bad decisions" is probably very low. For the so-called "generic"
names, it's been my impression (no statistics, yet) that the "bad decisions"
are very high, possibly as high as 30-40%.

It's also my observation that many of the decisions are trending away from
the purpose for which the UDRP was created: stopping "bad faith"
registrations.

For example, just last week an arbitrator ruled that the word "Tata" was a
famous name, which required a domain name incorporating it to be cancelled.

There are a lot of problems with that.

First, the DNSO never resolved to include famous mark protection in the
UDRP. The WIPO arbitrator, however, allowed his ruling to turn on the
famousness of the word "Tata."

Second, when did the word "Tata" become famous worldwide? Now, you may think
you know what those famous Tatas are, but you'd be mistaken. The famous
Tata, at least in the eyes of WIPO, is associated with an Indian industrial
company.

All this to take the domain "bodacious-tatas.com" away from a domain name
registrant because it incorporated the "famous" word "Tata," an Indian
trademark of Tata Sons, Inc.

Can anyone really think that the registrant of "Bodacious-Tatas.com" thought
one moment about an Indian industrial company when it chose its domain name?
(for those not in the U.S., "bodacious tatas" is a Southern United States
colloquial phrase for large female breasts.)

The opinion states that the domain name registrant failed to appear, which,
you might think, explains why the decision is so bad. But you'd be wrong
there too. While the UDRP panelist *wrote* that the domain name registrant
failed to appear, he lied. In fact, as I understand it, the domain name
registrant *did* file a response, which the arbitrator rejected and refused
to consider because it was "informal."

This decision is a poster-child for UDRP reform. Yes, it's extreme, but
there are more like it. And the trend shows an increasing number of these
turkeys.

Read it yourself: 
http://arbiter.wipo.int/domains/decisions/html/d2000-0479.html

              -- Bret

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