Re: [wg-review] [IDNO] OR [IDNH] addendum

[Michael Sondow <msondow@iciiu.org>]

Chris McElroy wrote:
> 
> I don't believe in "required" arbitration in any form. They currently have
> it fixed so you cannot do business on the Internet unless you agree to the
> UDRP as it is written.

That was the price that ISOC and CORE had to pay the trademark
people to get their support.

> That is signing an agreement "under duress".

In the US it's called a "contract of adhesion". There are a few new
laws that attempt to regulate contracts of adhesion, but so far they
haven't been effective.

> Without
> a Domain Name, I can't do business. Without agreeing to the UDRP I can't
> have a Domain Name.

Add "Unless I do business the way I am told by the DoC and ICANN, I
will have my domain name taken away and will lose everything", and
you've got the whole picture.

> I should not have to agree to do that in order to start
> a web-based business.

No, you should not. Any good ideas how to put a crimp in the
stinkers who have done this to you?

> It should be chosse how you prefer disputes be
> settled. Court of Law or WIPO.

How about an arbitration panel organized by the World Consumer
Protection Organization?

> The only reason it is mandatory is people
> would choose a Court of Law most of the time and that would not allow WIPO
> to insert it's own definition of TM Law which doesn't reflect actual TM Law
> at all.

There's more to it than that. Actually, the courts of law have a
problem: there's very little real legislation regarding domain
names. For example, there is no statute in which they are defined
legally. Are they property? Tangible or intangible? Movable or
immovable? No one knows, especially not the judges, who are
terrified by the whole thing.

A UDRP is in theory not such a bad idea. The problem is that now we
have a UDRP that was created by special interest groups to serve
their own ends. There was no representative of consumers - users of
domain names - on the committees that wrote the UDRP. And, as some
have pointed out, there is nothing uniform about it. The conflicting
decisions are now legion.

What's needed is a new process that finally does include all
stakeholders and whose results, like a UDRP, will be fairly
regulated.

However, it is my opinion that this cannot be done through ICANN,
which is tainted beyond redemption, even at its creation. No
non-profit California corporation, being used as a cover for DoC and
big business manipulations, can be turned into a fair and
representative international forum. What's needed is a real process,
to replace the phoney one that's been thrust upon us.

M.S.
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