Re: [ga] UDRP Questionnaire

[Sotiris Sotiropoulos <sotiris@hermesnetwork.com>]

Sandy Harris wrote:

> As far as the software is concerned, domain names are just strings meeting
> a set of rules defined in the RFC I cited.

We're not talking about the software.  We are talking of human valuation.  Alaska
was just another big chunk of geography on the earth, until it was sold to the US
by Russia... then it became a State of the Union.  The RFC you cited does not offer
a definition, it is merely a description.  There is a difference between saying
that Alaska is generally cold, and that Alaska is an American State that happens to
be near the Arctic Circle..

> For the user, they are usually mnemonic. Nothing technically prevents using,
> say, xwqztttmnuhofxy.net, but an individual or business might want a name
> people can remember.

Might?  I think it's rather a foregone conclusion, especially since a large
percentage of UDRP disputes where domains were redelegated involve words which were
already easy to remember (before *any* TM's were registered, eg. Madonna or
Corinthians.  Hmm... I wonder what the people of the city of Corinth might have to
say to the soccer team which won the CORINTHIANS.COM domain via UDRP?  Don't you?

> Where the complications come in is that the strings in domain names may
> include names for which others claim rights. madonna.com uses a name which
> a pop star and the Orthodox or Roman Catholic churches might claim rights
> to.

And so on ad infinitum... So who really has the final right to the name
madonna.com?  Which is why the "first come first served" registration model was the
fairest mode of registration that could have possibly been instituted.  But, thanks
to shallow circular arguments like the ones I'm reading in response to my posts, we
have a UDRP which clearly favours large corporate/vested interests.

> You might object if I registered sotiris.sotiropolis.name. What if I
> register gnossos.papadopolous.name? A fictional character presumably
> cannot object, and the author is dead, but does the publisher or the
> author's widow have something to say?

Here in Canada, a dead author's copyrights extend to 50 years after his death,
after that his works are public domain no matter what the widow or anyone else has
to say.  As far as the available literature is concerned, domain names are a public
resource and should be considered public domain unless evidence of a bad faith
registration is actually produced.  By evidence I mean a bona fide
letter/communication from the defendant to the plaintiff- quite simple really.  If
the plaintiff could prove such an approach was made then they have a legitimate
position, if they cannot, they have no a priori rights to a domain name
registration.

> For this, the problem is not defining "domain name" as you seem to
> think. We have a perfectly adequate definition.

Again, where is it?

> What we lack is a
> fair and effective procedure for handling the conflicts that arise.
> UDRP was supposed to be that, but it seems to be failing miserably.

Can you tell us how it's failing and why?  Please be a littlemore specific... Do
you mean to say that you agree with the observation that the UDRP favours the
claims of big business over smaller businesses and individuals?

> I think there are two obvious things we could fix in UDRP.
>
> First, it is binding on the domain name holder (because the registrars
> will enforce the decisions and their contracts include the UDRP) but
> not on the complainant. Make it binding on the complainant, adding
> suitable legal language to the complaint form.
>
> Second, make it utterly clear that non-conflicting use is fine. For
> example, the bodacioustatas.com case should have been laughed out of
> court, and the only attack on ibm-sucks.org that a UDRP panel should
> even listen to would be one from a critic complaining that IBM had
> registered it to squelch criticism. That, they should grant instantly.

Your two "fixes" are good suggestions, but they are rather vague.  In particular,
the second proposition seems rather weak, epecially when one considers the nature
and scope of conflict in a linguistic context.  This is why evidence of bad faith
must be something more substantial than simply a similarly spelled string.

Regards,

Sotiris Sotiropoulos

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