Re: [ga] DNSO ICANN board member

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

> 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.

Yes
>
> Who to blame, ICANN or WIPO is not a very important question, I
> think. ICANN approved of WIPO doing the cases.

I'm playing devil's advocate here, but it seems ICANN structure, resources
etc meant that it pretty much had to hand over to WIPO.

So ICANN should monitor
> them. And thoroughly review, as it promised, the UDRP.

The review is due November. November is also when she leaves, so with the
changeover at the top, this whole process may end up getting pushed back
>
> 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.

I've already written to her to express my views, in very moderate but firm
language, and I hope others do too.

Louise
>
> --
> 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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