Re: [ga] DNSO ICANN board member

[Marc Schneiders <marc@venster.nl>]

Agreed. We may quarrel over details perhaps. I presume we agree on two
basics:

1. Some form of mandatory arbitration is not bad;
2. The present functioning of the UDRP is unfair, even unjust in a number
of cases. 

Who to blame, ICANN or WIPO is not a very important question, I
think. ICANN approved of WIPO doing the cases. So ICANN should monitor
them. And thoroughly review, as it promised, the UDRP. 

We must be careful not to let the issue of UDRP review on ICANN's agenda
disappear or be handled badly through too much attention for the new
gTLDs. That will not be easy, esp. since they are related...

The very positive way in which the UDRP and the way it worked, was
mentioned in Yokohama, esp. by Ms Dyson (twice within an hour), gives
cause for some anxiety and alertness.

--
Marc Schneiders ------- Venster - http://www.venster.nl 
 marc@venster.nl - marc@bijt.net - marc@schneiders.org

On Fri, 1 Sep 2000, Louise Ferguson wrote:

> 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
> >
> 

--
Marc Schneiders ------- Venster - http://www.venster.nl 
 marc@venster.nl - marc@bijt.net - marc@schneiders.org

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