Re: [ga] UDRP Questionnaire

[Sotiris Sotiropoulos <sotiris@hermesnetwork.com>]

Sandy Harris wrote:

> Sotiris Sotiropoulos wrote:
>
> > > For this, the problem is not defining "domain name" as you seem to
> > > think. We have a perfectly adequate definition.
> >
> > Again, where is it?
>
> See the RFC.

I have read and re-read the Request For Comment.  It is merely a schematic, a
blueprint, a description, nothing more.  The reason it is a request for comment (as
Jeff pointed out), is because it's unfinished.  There is no delineation of the
fundamental nature of the domain name as a commodity, which surely we must all agree it
is...  Definiton:  A statement conveying fundamental character.  Description: The act,
process, or technique of describing.  In this RFC we have clearly an attempt at
description, but no statement as to the essential nature of the res in question: domain
names.  Surely, the value of some*thing* is usually a good indication of where claims
and rights may be an issue?

> > > 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?
>
> Certainly, though I think perhaps you understate it.
>
> I'd say the UDRP as currently set up is a barefaced piece of cheating by the
> 'Intellectual Property' interests, grabbing 'rights' they do not have in
> any nation's law.

That is quite strong, but accurate methinks.

> > > 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.
>
> What I meant in the second was that the burden of proof must be on the
> complainant.
>
> e.g. Tata use their trademark for lots of industrial stuff, including most of
> the trucks in India. If bodacioustatas.com started to sell trucks in India,
> they'd have a clear case. If it sold something vaguely related (e.g. generators),
> or if it were selling Indian imports in the US, then confusion might arise and
> they'd have something worth talking about. However, they have no case against
> a porn site -- not even one named tata.com -- any more than Sun Oil can sue
> Sun Microsystems for trademark misuse.

Let me throw something in here.  Currently, there is the SouthAfrica.com debacle going
on.  The government of SA which has its very own ccTLD resource .za, wants to take the
SouthAfrica.com domain name from VirtualCountries.  But, let's be non-partisan about
this for a few moments.  UnitedStates.com is registered to an individual in Marina Del
Ray and there is a functioning website... has been for a while.  GreatBritain.com is
registered to a company called Linux Labs in Atlanta, Georgia, and there is a website.
Canada.com is owned by Southam Inc., there is a website  If I had to choose the most
appealling website of the four, I would say that Virtual Countries has developed a far
more flattering Web presence than any of the other three I mentioned in comparison (and
Southam Inc. is an empire unto itself!).  Instead of trying to wrestle the name away
from these guys, the SA gov't should be trying to work with them!  I honestly believe
the GA should issue a statement on this case.

> On the same principle, ibm-sucks.com could not easily be confused with an IBM
> site so IBM have no cause for UDRP action against such a site. Of course, they
> can sue for libel, or prosecute for theft of trade secrets or ... if that seems
> warranted, but that's not our problem. On the  other hand, having IBM own that
> name could create confusion, so a UDRP action by a critic to grab the name from
> IBM should succeed.

ibm-sucks.com is not registered but ibmsucks.com is registered.  I'm considering
writing the chap who's the registrant and asking him if ibm's giving him any trouble.

> I think there are two stages to this. First the compainant has to demonstrate
> the existence of a conflict in something like trademark law. The question of
> 'bad faith' does not even arise unless there's a clear conflict.

I understand and agree with your point completely.

> I'd also like to see three possible outcomes from a UDRP ruling.
>
> Complaint denied, and the complainant is going to have a hard time going to
> court since he agreed that the UDRP procedure was binding.
>
> Complaint accepted and (former) domain name holder is going to ...
>
> No ruling. The complainant appears to have at least enough of a case to
> argue about, but it is not clear enough for UDRP to summarily rule on.
> Take it to court or drop it.

Is there a Steward on this list who's responsible for picking up the various nuggets?
I think these recommendations have possibility.  Along with Milton Mueller' proposal
for a three year original domain registration immunity from UDRP.

Sincerely,

Sotiris Sotiropoulos

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