+ Reply to Thread
Results 1 to 10 of 10
  1. #1
    Join Date
    Sep 2002
    Location
    Wales (UK)
    Posts
    24,745

    WIPO decision fails to find reverse domain hijacking with predated reg

    and so the tower of cards of (unofficial) precedent moving decision making beyond the actual wording and the WIPO review continues:

    The Panel agrees with the Respondent that ordinarily the launching of such an obviously and fundamentally flawed complaint ought to lead to a finding of reverse domain name hijacking. However, it is a fact that some panelists would not necessarily dismiss a complaint simply on the grounds that a good faith registration of a domain name cannot constitute an abusive registration under the Policy. Some panelists have held that in certain circumstances abusive use of a domain name can ‘colour’ assessment of original intent at registration, or in some cases even render a seemingly innocent registration into a deemed abusive registration within the meaning of paragraph 4(a)(iii) of the Policy.
    In the present case, the Complainant knew (and has admitted that it knew) that the Respondent registered the disputed domain name well before the Complainant even thought of using it.

    Against this must be balanced the consideration that there is nothing in the record to indicate actual malice on the part of the Complainant.

    http://www.wipo.int/amc/en/domains/d...2009-0943.html
    When using google for counts - use double quotes for usage counts for multiword terms and set "match type" to "exact" for all search volume lookups. Click here for more info

  2. #2
    Join Date
    Sep 2002
    Location
    Wales (UK)
    Posts
    24,745
    they quote this from Shirmax Retail Ltd. V. CES Marketing Group Inc., NAF Case No. AF-0104 as follows:

    The fourth example (paragraph 4(b)(iv)), however, refers only to improper use, and does not appear to require that the domain name also have been registered in bad faith. This example thus appears to conflict with the rule set forth in paragraph 4(a)(iii). The language of paragraph 4(a)(iii) is clear, and the only reasonable interpretations are to regard the fourth example as a narrow exception to the preceding subparagraph’s conjunctive rule, or to apply the conjunctive rule as it is written and disregard the example entirely.”
    which seems pretty staggering, as it suggests that rather than looking at how the example might fit the actual policy (4 a iii) - they simply take that example in isolation even though it's perfectly possible to interpret it as fitting with 4 a iii simply by requiring bad faith registration and looking at that as an example of bad faith usage.

    they don't seem to comprehend a list of example can be given that doesn't require everything in it to match all the elements for example:

    Here are examples of birds and things that can fly:

    eagle
    crow
    helicopter
    by their logic a helicopter must be a bird.
    When using google for counts - use double quotes for usage counts for multiword terms and set "match type" to "exact" for all search volume lookups. Click here for more info

  3. #3
    Join Date
    Feb 2003
    Location
    Toronto, Canada
    Posts
    3,032
    The number of UDRP complaints at WIPO has been falling. Panelists are likely moving the goal posts on purpose, in order to get more business. At some point they risk being taken to court for that, given the policy says:

    http://www.icann.org/en/udrp/udrp-rules-24oct99.htm

    Except in the case of deliberate wrongdoing, neither the Provider nor a Panelist shall be liable to a Party for any act or omission in connection with any administrative proceeding under these Rules.
    At some point, their decisions might be able to be classified as "deliberate wrongdoing", especially if one has the benefit of "discovery of documents" to be able to see all the communications between UDRP providers and their panelists.

    Especially in light of the history of NAF:

    http://domainnamewire.com/2009/07/20...orney-general/

    http://domainnamewire.com/2009/07/15...tration-forum/
    George Kirikos - (416) 588-0269
    I'm a domain buyer. Please use the contact form on my company website to submit lists of domain names. If a matter is urgent, please telephone me instead.

  4. #4
    Join Date
    Feb 2003
    Location
    Toronto, Canada
    Posts
    3,032
    Most domain registrants, if they can afford it, should probably go the route Tucows did in the Dunlop.com matter, and use the court system, instead of UDRP:

    http://www.wipo.int/amc/en/domains/d...2009-0367.html
    George Kirikos - (416) 588-0269
    I'm a domain buyer. Please use the contact form on my company website to submit lists of domain names. If a matter is urgent, please telephone me instead.

  5. #5
    Join Date
    Oct 2002
    Posts
    10,988
    Originally posted by GeorgeK
    Most domain registrants, if they can afford it, should probably go the route Tucows did in the Dunlop.com matter, and use the court system, instead of UDRP:

    http://www.wipo.int/amc/en/domains/d...2009-0367.html
    Did they win?
    "

  6. #6
    Join Date
    Feb 2003
    Location
    Toronto, Canada
    Posts
    3,032
    The WHOIS for dunlop.com still shows Tucows as the owner of it, so they didn't lose. (I'm not sure if the court case is still going, though, as Canada doesn't have a system comparable to PACER yet)
    George Kirikos - (416) 588-0269
    I'm a domain buyer. Please use the contact form on my company website to submit lists of domain names. If a matter is urgent, please telephone me instead.

  7. #7
    Join Date
    Sep 2002
    Location
    Cook Islands
    Posts
    6,396
    In an interesting twist, the federal judge in Miami, Florida ordered the matter to UDRP arbitration in order to get an expert arbitrator’s review of the cybersquatting issue under the UDRP. While the ACPA is broader than the UDRP, the UDRP overlaps almost perfectly with the ACPA on the substantive cybersquatting issues. Stated another way, a violation of the UDRP strongly supports same findings under the ACPA.
    http://tcattorney.typepad.com/anticy...ted-names.html

  8. #8
    Join Date
    Jan 2003
    Location
    Mexico
    Posts
    3,831
    "expert arbitrator’s review"

    oxymoron, anyone? anyone?
    Captain Stupid.
    Jimmy James Inc. fan club membership # 3312

  9. #9
    Join Date
    Sep 2002
    Location
    Cook Islands
    Posts
    6,396
    LOL Drewbert.

    Wonder if the parties in the court hearing could have requested the judge seek a UDRP review by a panel of three rather than a single panelist?

  10. #10
    Join Date
    Feb 2003
    Location
    Ashland, Oregon
    Posts
    2,843
    Originally posted by GeorgeK
    The WHOIS for dunlop.com still shows Tucows as the owner of it, so they didn't lose. (I'm not sure if the court case is still going, though, as Canada doesn't have a system comparable to PACER yet)
    I found this system which you can search for cases, but couldn't find any reference to the case:
    http://www.canlii.org/en/

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  

Sponsors

Ending Auctions

Poll

Which is most important in selecting a domain registrar?
1. Lowest possible fees
2. Features and functionality
3. Customer service
4. Security of your domains
5. Other
to see the Poll results!
 
DomainState.com
Domain Tools | Domain Directory | Registrar Stats | Domain Glossary | Industry Events | FAQ | Members | Terms | RSS | Link To Us | Advertise | Contact Us
Other Related Trellian Services:
Above Domain Parking Manager   |   Free Search Toolbar   |   Free Webpage Builder   |   Keyword Research   |   Search Engine Submission   |   SEO Tools
Copyright © 2002 DomainState.com a Trellian Company