Re: [ga] Re: Reconsideration

[Bret Fausett <baf@fausett.com>]

Stuart --

As near as I can tell, Mr. Smith's request of 20 May 2000 (as it was copied
below to the GA list) was sent to the correct address <reconsider@icann.org>
and contains all the necessary elements for a Request for Reconsideration.

This is apparently a different request that the one addressed in your
previous response. Can you look into this and see why it wasn't processed by
the Reconsideration Committee? If it was received but ignored (as I think
Mr. Smith is suggesting), that would point to a failure of process, at the
least, that ought to be remedied.

      -- Bret

On 8/7/01 8:33 PM, "admin" <admin@consumer.net> wrote:
> 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
> 
> +++++++++++++++++++++++++++++++
> 
> 
> 
> ===
> 
> 
> 
> (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


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