A WIPO case decided today had some good language concerning the issue of “bad faith” for purposes of UDRP’s.
Although the facts of this particular case will be of little interest to domain holders as it involved parties that had a history together, the decision contains language helpful to domain holders.
When I comes to bad faith there is a divergence between panelists, which of course is not helpful since its one of the basic elements and findings on which these decisions turn.
One set of panelist’s apply the words of the policy as they are written, which is that bad faith must exist at the time of registration, while other panelist’s find that bad faith at any time during the period the domain is held is sufficient to allow a domain transfer.
In this case the panelist said:
“The key point in this decision rests on the words “at the time of the registration”. ”
That is, the issue is whether bad faith at the time of registration can be inferred from subsequent conduct. ”
“Unless there is clear evidence that at the time of registration the respondent intended to exceed his brief, the Panel does not see how a finding of registration in bad faith can be squared with the Policy’s plain language.”
“Stated conversely, the Panel does not believe that a respondent should be presumed to have registered a domain name in bad faith solely because he subsequently used the domain name in bad faith.”
Correct.
Now if we can only get all panels to go by the clear language of the policy instead of making it up as they go.
Wasn’t there a few cases that considered the domain renewal
the same as new registration?
(Starting the clock after reach renewal.)
Meyer
Yes there are such cases that it what I’m talking about in the post of panelists having a split of opinion on this issue.
However the policy is clear and it is correctly stated by in this decision
Horray! This is the best UDRP news I have heard in a while. Now to make sure the message gets to the NAF crowd. Also, did you see that Brett Lewis discovered that NAf write the opinions for the panelists to approve and simply submit rather than write it themselves? Sketchy! http://tinyurl.com/2bjkqa8
Chip
I did see the article your referring to.
I think our friend George Kirikos was the 1st to discover this, however I have to note that despite his findings over 2 months ago, nothing has changed over at the NAF
i’m not expert in udrp. this is just my biased opinion. i use “domainers” to refer to those in the domaining community who (can make a good faith argument they) are not infringing others’ IP.
i would generally agree udrp is an embarrassment to the legal profession. it seems to me the folks serving as panelists are publicly displaying how clueless they are about technology… the same technology they proclaim to their clients that they “understand”, in order to procure their business.
but, i doubt that the arbitrators are the only ones making mistakes. i recently came across a glaring mistake by what i assume was an otherwise astute domainer that i suspect may be too common. it relates to dates and record-keeping.
as a domainer, you *must* keep accurate records of the date you acquired or originally registered (if you’re the only registrant) each domain, especially your most valuable domains. these dates are significant. the “decision” i read went so far as to presume domainers use whois privacy to cloak these dates. yet, in that example, the facts (dates) were actually favourable to the domainer. but because he failed to produce accurate records there were assumptions made, and these assumptions were, as you might guess, not favourable to him.
if domainers want to prevail more often in udrp, they need to be better organised. that means attention to detail. record-keeping. as we all know, the panels do not understand how domaining works. to them it is mostly a black box. unless you paint a clear picture for them, they will make assumptions. and we should not be surprised if these uneducated guesses are not usually favourable to domainers.
after all, some domainers are making 2-3 times the salary of the arbitrators handling these disputes, and, no surprise, domainers are not funding the law firms they work for. (even if they wanted to, these firms can’t help domainers because, like most of the public, they don’t understand how the internet really works).
in sum, pay attention to dates!
(also remember udrp and acpa are not the same.)
@ deterministic
“I would generally agree UDRP is an embarrassment
to the legal profession and the Internet community at large”
………………. And should be to ICANN, also ………………………
Now there is proof that “Coercion Exists”
As i have stated many times before THAT
without exception the rules of the road at arbitration……
“Must be set in stone at a domain hearing ONSET”
This kangaroo Court style of arbitration can not be allowed
to continue to deprive DOMAINERS of there property by corrupt
and incompetent Judge Roy Bean judicial panel decisions.
READ THIS “PROOF” (below)
AND TELL ME “FIXED COERCION ” IS NOT GOING ON!
A – M-U-S-T R-E-A-D : http://www.tinyurl.com/2bjkqa8 (Click!)