Re: [ga] DNSO ICANN board member

["Louise Ferguson" <louise.f@ntlworld.com>]

No, selling is not forbidden. But offering for sale - on a domain sales web
site for eg, ie to anyone - is interpreted by most panellists as evidence of
bad faith.

Agreeing to send a business plan when requested, to someone who subsequently
turned out to represent a company which is a subsidiary of the complainant,
that complainant having > 1,000 trademarks registered in Spain, of which two
included the generic word of the domain in a longer string, was also found
to be bad faith in WIPO case 505 (although the panellist admitted that the
domain had never been offered for sale to anyone). In case 505 a profit
motive was also deemed to be bad faith, as was the existence of any material
of any description on the web site.

If I respond to any e-mail offer to buy one of my domains, or to invest in
my projects, without first checking the exact trademarks owned by that
person in every country, I am immediately putting myself in a potential bad
faith position, and my domains are not for sale on any web site.

The breadth of  these 'interpretations' can be traced back to the UDRP.
Because it just gives a few examples of what bad faith may be, but fails to
draw any line between bad faith and good faith, panellists are free to set
those limits themselves. The UDRP, if it is to remain, should clearly state
that certain things are not to be interpreted as bad faith. We cannot modify
the way trademark lawyers acting as panellists think. But if the UDRP were
changed, we might at least be able to limit the field of damage. And perhaps
ICANN needs to rethink whether trademark lawyers should be panellists.

I think a list of items that would be termed attempted reverse hijacking
should also be included, just to even up the scales. For eg, filing
trademark applications for the domain owner's company name immediately prior
to filing a complaint; approaching the domain owner with an offer to invest
in the domain project immediately prior to filing a complaint; filing
trademark applications identical to domain names belonging to 3+ third
parties immediately prior to filing the complaint; filing multiple trademark
applications for expressions identical to domain names that the organisation
cannot legally register; doctoring documents presented as evidence; making
false claims disproved by the evidence (including statute law) before the
panellist (all these examples are from a single case).

Louise

----- Original Message -----
From: Marc Schneiders <marc@venster.nl>
To: Louise Ferguson <louise.f@ntlworld.com>
Cc: <ga@dnso.org>
Sent: Friday, September 01, 2000 1:11 PM
Subject: Re: [ga] DNSO ICANN board member


> On Fri, 1 Sep 2000, Louise Ferguson wrote:
>
> [...]
> > With the UDRP, there now seem to be implied terms in these contracts
that
> > should be written up front, for everyone to see. If (a) I have to accept
the
> > UDRP when I sign the
> > contract and (b) every registrar for gTLDs includes the UDRP in their
> > contract and (c) under the UDRP I am providing evidence of  bad faith
> > registration or use if I try to resell for greater than purchase price,
then
> > maybe the contract should state that it is forbidden to transfer for
more
> > than purchase price.
>
> In the UDRP your number (c) is somewhat differently worded and only
> applies to intended TM infringements with an intent to sell to the TM
> holder. Selling iitself is not forbidden.. This is the theory of course,
> as in real life trying to make a profit is deemed to be bad faith. Only
> with domain names, not with stocks, land, art, whatevever. I suggest we
> direct our efforts against the unjust *interpretation* (if it is that) of
> the UDRP by WIPO. Not against UDRP itself.
>
> --
> Marc Schneiders ------- Venster - http://www.venster.nl
>  marc@venster.nl - marc@bijt.net - marc@schneiders.org
>

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