[ga] Whois - UDRP - Transfer TF Implications? - Sex.com case developments..

[Jeff Williams <jwkckid1@ix.netcom.com>]

All former DNSO GA members or other interested parties,

  "Are domain names property like plots of land?", asks W.M. Jones
See:  http://yro.slashdot.org/comments.pl?sid=03/01/07/0335210

And an even more interesting reference:
http://www.metnews.com/articles/krem010603.htm
Which the following excerpts some of you more legally adept
readers may find interesting as it relates to Whois data,
UDRP and Tranfer/Delete task forces:

Monday, January 6, 2003

Page 1

Supreme Court Asked to Decide Domain Name Conversion Issue
Ninth Circuit Panel, Over Kozinski Dissent, Asks State Justices for
Guidance in ‘Sex.com’ Case

By KENNETH OFGANG, Staff Writer/Appellate Courts

SOME BASIC BACKGROUND:

The Ninth U.S. Circuit Court of Appeals yesterday asked the California
Supreme Court for a ruling on whether the registrar of an Internet
domain name can be held liable for its conversion by a party that
fraudulently persuaded it to cancel the true owner’s registration. 
The request is the latest turn in the long legal battle over 
“sex.com.” The name was registered in 1994 by Gary Kremen, doing 
business as Online Classifieds, Inc., but saw little use in the 
next 18 months. In October 1995, Stephen Michael Cohen asked that 
the name be re-registered to a Nevada company he controlled. In 
support of his request, Cohen supplied a letter on Online Classifieds 
stationery, purporting to be signed by the president of Online
Classifieds, authorizing the cancellation of the original 
registration and the re-registration of the name to Cohen.  
Cohen then used the name to build a multimillion-dollar on-line 
pornography business. About eight

months after the re-registration, Kremen asked for the name back,
claiming that the letter was a forgery.    Network Solutions, Inc.,
then the exclusive registrar of “.com” domain names, said it would not
change the registration back without a court order. Kremen then sued
Cohen, several Cohen-controlled entities, and Network Solutions 
for damages and injunctive relief.

< Personal note interjected here:  Lets hope that this Mr. Cohen is
not related to ICANN's Jonathan Cohen >

  Most interesting findings:

‘New and Substantial Issue’

Ninth Circuit Judge M. Margaret McKeown and Senior U.S. District Judge
James M. Fitzgerald of Alaska, sitting by designation, said the appeal
“raises a new and substantial issue of state law in an arena that will
have broad application” and should be decided by the state court.
   But Judge Alex Kozinski dissented, arguing that the resolution of
the issue would not affect many cases and that California law clearly
favors Kremen’s position.
   This state’s courts long ago rejected the common law rule that
property could only be the subject of conversion if “tangible,”
the jurist said, pointing to an 1880 Supreme Court ruling that 
allowed a suit for conversion of shares in a corporation and 
rejected the defense argument that the plaintiffs could sue for 
conversion of the share certificates, but not the shares themselves.

“None of this matters anyhow,” Kozinski went on to say, because 
Kremen would win even if the “merged in a document test” is applied.
Kremen has “the right to have people who type ‘www.sex.com’ into 
their web browsers sent to his website,” Kozinski—generally 
regarded as among the most tech-savvy members of the bench—explained.
“It is, in standard Geek, the right to have the second-level .com domain
‘sex’ associated with his [internet protocol] address in [Network
Solution’s] .com registry,” the judge elucidated.

< Seems here to me that Network Solutions  at the time did not
check their own Whois listing on this Domain Name or did not
believe the data such a search displayed.  And did Kremen
have a TM filed on Sex or SEX.com? >

  Also of some interest and humor in this Excerpt:

‘Too Much to Bear’
   Kozinski also attacked Network Solutions’ claim that it had no
reason to question the authenticity of Cohen’s letter as “too much to
bear,” especially given the explanation that Online Classifieds wasn’t
communicating directly because it lacked “a direct connection to the
Internet.”

   The judge commented in a footnote:
   “It’s a bit as if Judge Reinhardt sent a letter to the DMV saying,
‘Judge Kozinski wants you to transfer title to his Lamborghini
to meóhe’d write to you himself, but he’s out of stamps.’ ”

=========

   The case is Kremen v. Cohen, 01-15899.

Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 127k members/stakeholders strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number: 214-244-4827 or 214-244-3801
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
--
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