RE: [ga] Re: Reconsideration
Title: Re: Reconsideration You
are lying. It is unbelievable that you are blatantly lying like this on
this list.
I
submitted 3 reconsiderations and 2 were ignored. Furthermore, I resent
these several times to Mr. McLauglin and Mr. Touton as well as several other
people. At that point I gave up submitting reconsideration requests
because they were ignored and because the ICANN responses to other
reconsideration requests were simply ridiculous and often completely
false.
As for
the submission I did submit, the ICANN "official" stance on the trailing hyphen
domains directly contradicts what Louis Touton told me on the phone and what Mr.
Roberts stated in public interviews which were taped an broadcast at
InternetNews.com. Roberts said publicly one of the main reasons was
because they received Intellectual Property complaints. Louis Touton also
said he received a complaint directly from AOL. I had previously been
involved with privacy lawsuits against AOL. The final reason ICANN gave
was that it broke some programs (like FTP) just like the long domains did when
they came out. Also, I was supposed to be given the opportunity to address
the board before they revoked the domains. I was never given that
opportunity and McLaughlin pointed me to the board "decision" several weeks
after it happened.
The
additional reconsideration requests I filed involved issues surrounding the
UDRP. One reconsideration was filed on May 20, 2000 to request
was that ICANN staff failed to ensure that the arbitrators were properly
trained. Specifically, I requested ICANN staff to ensure that each
arbitrator was aware of the ICANN staff report #2 for the UDRP. This
second staff report contains key information about the scope of the UDRP and it
was clear from many early decisions that many arbitrators were not aware of
this document.
Another reconsideration request was filed on May
31, 2000 in response to the answer ICANN made to a reconsideration request made
by someone else. This involved the posting of information
concerning which UDRP transfer decisions were put "on hold" as a
result of the respondent filing a law suit within the 10 day period as set forth
in the UDRP. The ICANN reconsideration committee made false statements in
their initial response to the initial complainant.
These
2 reconsideration requests were ignored. Since the reconsideration
committee was making false statements in their responses, and my requests
were being ignored, there is no point in filing any
more.
Again,
you are a blatant liar as well as a fraud. Let me know when you are in
Washington, DC so you can apologize to me in person.
Russ
Smith
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Below is the May 20, 2000 reconsideration request. This involved one of the arbitrators who posted to the list of the International Trademark Association (INTA.org). The arbitrator's posting made it clear that he was not aware of the issues contained in the ICANN second staff report for the UDRP and, as a result, faulty decisions were made. Below is the reconsideration request along with the postings from the INTA list: -----Original Message----- From: Russ Smith [mailto:russ@consumer.net] Sent: Saturday, May 20, 2000 12:58 AM To: reconsider@icann.org Cc: arbiter.mail@wipo.int; Francis Gurry; touton@icann.org; ( Arbiter.Mail ); Arif Ali; Deborah Enix; Erik Wilbers; Patricia Simao; dryan@davies.com.au; r_fashler@davis.ca; Schaber, Michelle; Bowser, Walt [wbowser@arb-forum.com]; carmody@lawyer.com Subject: Reconsideration request-UDRP related
I am requesting reconsideration on the following ICANN activity: The failure of ICANN to properly publicize the stipulation in the ICANN staff report #2 concerning the Uniform Domain-Name Dispute Resolution Policy (UDRP). The report states in part: "In view of the comments, one detail of the policy's language should be emphasized. Several commentators indicated that the concept of "tarnishment" in paragraph 4(c)(iii) might be misunderstood by those not familiar with United States law or might otherwise be applied inappropriately to noncommercial uses of parody names and the like. Staff is not convinced this is the case, but in any event wishes to point out that "tarnishment" in paragraph 4(c)(iii) is limited to acts done with intent to commercially gain. Staff intends to take steps to publicize this point." -Russ Smith, PO Box 44232, Washington, DC 20026-4232 -I am requesting ICANN take 2 actions: (1) immediately notify all persons acting as UDRP arbitrators of this issue and (2) reprocess all domain disputes where First Amendment and/or tarnishment issues were raised during the proceeding. -I am affected by this matter because I operate domain names which could be subject to a similar dispute. Dispute decisions are being used as precedents for later disputes. therefore, such decisions may affect domains which I own. -This situation should be corrected because non-uniform decisions in the UDRP contribute to a destabilization of the Internet. The following documentation is being used to support my request: (1) A posting by attorney Robert A Fashler on the public INTA mailing list. Mr. Fashler was an arbiter for case http://arbiter.wipo.int/domains/decisions/html/d2000-0071.html which involved a First Amendment issue. Mr. Fashler's posting clearly indicates he was not aware of the ICANN provision concerning tarnishment. === -----Original Message----- From: owner-inta@interport.net [mailto:owner-inta@interport.net] On Behalf Of intanet-l@inta.org Sent: Thursday, May 18, 2000 11:05 AM Subject: (INTA)First Amendment and the UDRP
1) Does anyone believe a case can be made that there's a difference between a domain name in use for protected (1st Amendment) speech, and a domain name reserved, but not used, for that potential purpose? This question raises the relationship between the contractual regime embodied in the UDRP and the local law of any jurisdiction. Some of us have exchanged views on this before. As a non-US lawyers I wonder about the extent to which the First Amendment has any significant application to the UDRP. A very respected US professor and UDRP panellist has suggested that it does indeed apply as it may provide the basis for rights or legitimate interests in respect of a domain name. However, when I read Paragraph 4 (a) (ii) of the UDRP, it appears to be directed to a proprietary right or interest in the domain name, which, to my way of thinking is quite different than a right to communicate. I suspect that many other non-US lawyers would see it that way too. If that is the correct interpretation of the wording, it would appear that domain name owners have contracted out of any right of free speech to the extent that it must be expressed in a domain name that combines a trademark with a word that tarnishes it. Does US law make it impossible to contract out of First Amendment rights? Is there a conflict between the UDRP and US law? +++++++++++++++++++++++++++++++ Robert A Fashler Davis & Company (Vancouver) T +1.604.643.2975 F +1.604.687.1612 C +1.604.716.8204 E rob_fashler@davis.ca +++++++++++++++++++++++++++++++
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(2) NAF arbitration http://www.arbforum.com/domains/decisions/94306.htm. In this decision the Arbiter James A. Carmody was clearly unaware of the tarnishement issues (as well as several other issues surrounding the UDRP). "Both Complainant and Respondent have submitted lengthy and well-written briefs and many exhibits to support issues and theories which are more appropriately dealt with in contemporaneous litigation pending between the parties. First and Eleventh Amendment Constitutional issues are not within the scope of this arbitration." ... "Respondent’s web page at http://www.lobofootball.com/maverick/info.html, describes itself as "commercial enterprise formed to support UNM Lobo Football fans." Complainant has its own websites, public relations and athletic department spokespersons and is essentially a competitor of Respondent with regard to sports information and commentary. Respondent has used its domain names and related websites to disrupt the business of Complainant. Whether or not Respondent established and maintained the sites for personal commercial gain, I find that these sites have been maintained in bad faith to disrupt the legitimate commercial activity of the Complainant." Russ Smith End of May 20, 2000 reconsideration request === Below is the May 31 reconsideration request concerning the failure of ICANN to post the transfer decisions which were stopped as a result of law suit. however, the main point of the request was a complaint that the reconsideration committee made false statements in reponding to reconsideration request #5
-----Original Message----- From: Russ Smith [mailto:russ@consumer.net] Sent: Wednesday, May 31, 2000 5:17 PM To: reconsider@icann.org Cc: JKTrefil@HHLAW.com; touton@icann.org; edyson@edventure.com; roberts@icann.org; ajm@icann.org; comment@webseek.com; John Berryhill Ph.D. J.D.; arbiter.mail@wipo.int; Francis Gurry; touton@icann.org; ( Arbiter.Mail ); Arif Ali; Deborah Enix; Erik Wilbers; Patricia Simao; dryan@davies.com.au; r_fashler@davis.ca; Schaber, Michelle; Bowser, Walt [wbowser@arb-forum.com]; carmody@lawyer.com Subject: reconsideration request
I am filing a reconsideration request concerning the misleading response provided by the ICANN's response to RR 00-5. My standing in this matter is that I own a number of domain names which has generated a number of frivolous complaints. By posting incomplete UDRP decisions ICANN is encouraging more frivolous complaints. The misleading portion of ICANN's response is shown below: "The ICANN tables do not include notations relating to subsequent litigation, because the ICANN staff is simply too small and too overstretched to monitor and verify the hundreds of legal disputes that will surely ensue. The Reconsideration Committee finds the ICANN staff indices to be a valuable service for the benefit of interested and affected parties, and believes that ICANN should continue to provide the listed information in full." This is misleading and/or false because: (1) the statements claims that the staff would have to "monitor and verify the hundreds of legal disputes that will surely ensue." There is no basis in fact to this statement. Paragraph 4(k) of the UDRP states: "...We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure. ... If we receive such documentation within the ten (10) business day period, we will not implement the Administrative Panel's decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing your lawsuit or ordering that you do not have the right to continue to use your domain name." This rule describes a very specific situation and a 10-day time limit to file a "stay" of the transfer order. The ICANN staff (or the UDRP providers) would only need to monitor whether the lawsuit paperwork was filed within 10 days in order to halt the transfer. There is no rational basis to the claim that the staff would have to "monitor and verify the hundreds of legal disputes that will surely ensue." Furthermore, by failing to post this information, the full result of the UDRP proceeding is not being made available to the public. It is well known the UDRP decisions have not been consistent. by failing to post complete information ICANN is misleading the public as to the true outcome on the UDRP procedure. In other words, the public is not seeing that numerous lawsuits are being generated as a result of poor or sketchy decisions being rendered as a result of the UDRP process. Therefore, I request that all providers be required to post the complete decisions, which includes whether a transfer was not completed because litigation was filed to stop the transfer under rule 4(k) of the UDRP. I understand poor UDRP decision have resulted in a series of lawsuits which may not have occurred if the decisions were rendered in accordance with the UDRP and/or if a reasonable decision was published that explained the reasoning behind the decision. Russ Smith Wnd of
May 31, 2000 reconsideration request.
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