I got the same message from Frank’s Name Administration today that they settled a lawsuit stemming from the UDRP loss on the domain name ChilliBeans.com
While like the other bloggers who wrote about this development, I’m happy to see that justice was done, that the winner of the UDRP settled with the domain holder, but the bigger picture is that the lawsuit and settlement does nothing to change the record.
The UDRP was lost by the domain holder.
Been there and done that.
So while its great that the domain holder was finally vindicated with a cash settlement and an statement from the winner of the UDRP that the domain holder did nothing wrong, that the domain holder did not infringe on the “trademark” of the UDRP winner, that the UDRP panel’s decision was unjust and incorrect, at the end of the day the UDRP still stands in the record books as a win for the Complainant and the loss for the domain holder, and that’s the problem.
Like I said
Been there done that.
You see under the rules of the UDRP there is no appeal.
Although a domain holder has a right to file a lawsuit to stop the transfer of the domain under the UDRP, and has a right to file a case to force a court hear the case a new, since there is no right to appeal a UDRP decision, even if you win the lawsuit it does not overturn the UDRP decision.
The decision, is still on the record, still on the books, and can be cited by other panels for use against the domain holder in another UDRP or against other domain holders in other UDRP’s.
Sure you have the settlement from the court, and the statement from the UDRP winner that the decision was crap, but that doesn’t appear on the record.
The UDRP decision doesn’t get a footnote or an asterisk.
Yes the system sucks, its broke and its not going to change.
Welcome to the world of UDRP.
Thank you for your insight and explanation….very unjust.
Right or wrong, the domain community is always going to come to the defense of FS. I don’t know enough about the case or intricacies of the law, to make a judgement either way, but I think people need to be more honest about their motives, assessments and not just come to the defense of someone or something without fully comprehending both sides of the legal
argument.
P.S. it was a real turnoff for me when I read a well respected and recently community recognized award winning domain blogger jump down the throat of someone that posted a rather logical and civil retort to the legal judgement in favor of NA.
This blogger usually comes off as very rational, professional and tolerant of opposing viewpoints, but today he came off (in my opinion) as total unprofessional irrational dickhead.
Dean
I have no idea of how you read this post as coming off against or an attack of Mr. S.
Actually I wrote to Mr. S about my take of the case and the outcome before I posted.
This post is an attack on the system of UDRP which is desperately in need of change.
There needs to be a right to appeal a decision which results in an clear and decisive overturning of the UDRP which doesn’t exist right now
MHB,
my comment was not directed at you, I thought your write up was well balanced. My comment was directed at an exchange between a “Mr Bean” and Elliot Silver on his blog.
UDRP needs several elements reviewing…
A good start would be for ICANN to look at whether there should be an appeals process for losing respondents. Perhaps using the same fee structure as for complainants, allowing a second and separate independent panelist to look at the case.
This would not only help alleviate perceptions of inequitable bias from certain panelists but also offer a cost effective route for those who feel initial UDRP was incorrectly determined especially for those unable to afford redress through the courts.
Dean,
Is Elliot and Michael the same person?
I don’t think so.
So, why are you trashing Elliot on Michael’s blog?
I have invested in a technological term for a device that is not “trademarked” as far as I know. It’s a word that is used freely to describe a certain segment of a particular market, but there is one company shall we say, that probably could claim rights to to that term if it wanted to. It’s not by any means what I would call trademark infringement, it’s just one of those names that is on the fence and could go either way in a UDRP dispute. I registered these domains (25-30) knowing that there could be a potential dispute down the road, so I accept that and the risk involved.
My point being that most domainers are intelligent savvy individuals that know there is a certain risk involved with registering any name, especially in light of some recent decisions concerning what I would call generic terms that big corporations decided to go after.
Dean
Based on “Mr. Bean’s” comments, I did not think the person read the full article, and it’s not right to post critical comments about something or someone without all the facts (which were actually included in the article).
For instance, “Mr. Bean” said “I hope Frank sells the domain to Balglow Finance for $1 and hopefully he’s learned an important lesson here.” Had he read the entire article, he would have seen that “Name Administration has agreed to transfer the domain name to Balglow for an undisclosed settlement.”
It’s annoying to me when people seem to skip important aspects of articles and post their questions or comments, which would have been answered or addressed simply by reading the article.
PS: regarding this comment “today he came off (in my opinion) as total unprofessional irrational dickhead.”
The nice thing about working for myself and having my own blog is that I have the luxury of being an unprofessional dickhead on occasion, although I disagree with the assessment in this instance. 🙂
Elliot
I of course disagree with Dean.
I have always found you to be quite professional.
)))::
it is a generic term but i think if i remember correctly frank schilling had a contact lenses or spectacles affiliate feed at the top of the page?
think he knew who he was targetting in all fairness
both sides weren’t the best if we’re honest
the complainant went udrp route rather than just buy domain, frank schilling has more money than sense so went to slap them in the court. both sets of lawyers making cash and a draw being played out i guess
there have been far greater injustices to people who can’;t afford to fully defend themselves and moreso when a domain is wrongly taken from them. they’re the ones im more worried about
of course when you have 300,000 domains or more parked, you can see why frank schilling has to make sure he’s not labelled a cybersquatter
the floodgates would open and john berryhill would be a very rich man!
Goat
The fact and outcome of this case for me isn’t anywhere near as important as the issue I raised in my post that you do not have a right to appeal a UDRP and even if you wind up settling the issue in court, or even if you go to trial and get a decision in your favor the UDRP is still on file as a loss.
” and the statement from the UDRP winner that the decision was crap”
Where is the statement?
I know you said not on record.
Implicit?
Domo
In a similar situation involving a domain we owned smoothmove.com we settled a federal lawsuit we filed with the “winner” of the UDRP with the parties filing a judgment stating that:
“a. That the UDRP decision issued by the National Arbitration Forum in Traditional Medicinal Inc. v. Worldwide Media, Inc. et al., No. FA0902001247728 (NAF Apr. 7, 2009) is negated;
b. Plaintiff registered the Domain Name in good faith because it incorporates the common descriptive term “smooth move;”
c. Plaintiff’s registration of the Domain Name had nothing to do with Defendant’s trademark;
d. That Plaintiff’s registration and use of the Domain Name does not violate Defendant’s rights under the Lanham Act, 15 U.S.C. § 1051 et seq.”
I having seen the court order that settled Frank’s case but I would assume the order would have similar language.
Having said that the court order in our case says what it says that the UDRP decision was crap yet it is still on file and actually this decision was cited in a UDRP filing I received yesterday.
Could the defendant ask the court decision/findings be attached/ammend to the original UDRP?
(even when it’s close)
Domo
No
Bummer.
The Thread :
“Positive udrp case wording ”
at domainstate used to be very popular, lots of inciseful postings .
Happy to see that Frank was able to get the original UDRP decision negated.
Mike, I do have a small issue with your statement:
“Yes the system sucks, its broke and its not going to change.”
It’s clearly broke, and it certainly won’t change without considerable effort, but ICA’s Board and members have identified UDRP reform as a high priority and are evaluating priorities for change.
One top priority is going to be taking on the forum shopping that already exists, and that will only grow as additional UDRP providers are accredited. That’s why we told ICANN last week that no new UDRP providers should be approved until it creates and enters into a standard contract or other enforceable agreement with all UDRP providers — and we were pleased to see ICANN’s Business Constituency take a similar position after we made our case to other BC members.
The only way to assure uniform, consistent, and predictable interpretations of the bad faith registration and use standard is through this avenue — in fact, it’s the bedrock foundation of any meaningful UDRP reform. We have no illusions about change being easy to get — but we know that change is absolutely necessary and will be working to make it happen.
Thanks for the update on your case, Mike; I was going to ask if you could let us know how that was going.
A “Smooth Move” indeed! 😉
And Dean–your “I don’t know enough about the case or intricacies of the law, to make a judgement either way …” is important here, as without this knowledge, any comments on what you believe is honest, right, or wrong is without proper foundation.
What the law is–and isn’t–makes all the difference.
Phil
I know that you on behalf of the ICA is working on UDRP reform.
I also know that you will do everything possible to get the rules changed for the benefit of domainers.
I also know that Todd Rokita who visited TRAFFIC won his election.
I also know that as I chatted about after TRAFFIC that liff Stearns, who also visited TRAFFIC is now going to chair the House committee in charge of the Internet will put Todd on the committee.
However I’m done trying to get domainers to come off their wallets.
So although I support the ICA financially and I maxed out my contribution to Mr. Rokita, I’m going to jump right to the point which is that 99.99999% of the “domainers” who read this blog will not give $100 to anyone who will stand up for their rights.
So bottom line nothings going to change.
You can keep asking for domainers to spend what amounts to 2 NameJet back orders a year to support the industry that feeds them, but for me I’m done with it, exhausted and defeated.
I’m done beating that drum and my head against the wall asking domain holders to contribute a pittance to protect their own interests.
Most could care less if they lose their property and/or have their rights trampled upon.
God bless
@Elliot,
you still have one the best blogs around, despite your occasional lapse into dickheadedness, which you are entitled to. Thanks for addressing the post.
“The fact and outcome of this case for me isn’t anywhere near as important as the issue I raised in my post that you do not have a right to appeal a UDRP and even if you wind up settling the issue in court, or even if you go to trial and get a decision in your favor the UDRP is still on file as a loss.”
@MHB
it’s not an ideal system but i actually like the fact you cannot appeal!
i’ll tell you why in a minute.
i am a large domain holder myself, i have never been to wipo, yet!
i have fought off a couple billion dollar companies before getting there.
extremely wealthy domainers can take it to federal or sue if they need to challenge a decision, this is not an option for 99.9 % of domainers
also consider a lot of domains taken to wipo are fair enough, they’re blatant tm’s
for those that have generics /brandables etc. and are subject to a reverse domain hijacker, then if you defend yourself with a well thought out defence you would normally win. imho
they have to prove all 3 categories in the complaint. it’s not hard to win one as respondent
always choose 3 man panel too. yes you gotta pay, if you dont want to pay then domain aint worth it
when you win, i like the idea the complainant can’t appeal. lets face it, domainers will always be the respondent, 99.9% of time
i want closure if i ever end up there. doing all the paperwork takes forever too. time is money. i did one wipo for a friend rather than give fees to lowlife lawyers.
we won, hands down
the complaiants option would have been to go federal etc and pay a fortune, luckily they haven’t….
if they did then unfortunately my friend would have to hand over name beofre things went past stage 1 as costs would ruin him
again 99.9% of people would have to give in at that point, only the super rich can play that game, from either side
so much is wrong with wipo, icann etc, very corrupt i agree though
especially as most serving on the panels would have represented complainants via their dayjobs/law firms
absolute conflict of interest
it’s like going up on a serious charge in court, only to find the judge is on your payroll.
handy! and fraudulent
but that’s wipo
Well the WIPO servers are probably in the USA so one could order them via US courts to ammend the decision, no ?
@Dean
I am the “Mr. Bean” that posted on Elliot’s blog. I didn’t take Elliot’s comments personally. His blog is an asset to the domaining community and I find it an enjoyable read. Occasionally I post my opinions to his blog and others, but my opinions don’t always meet with approval by those who worship at the Church Of Schilling And Berryhill. Both of these men are very, very good at what they do, but they are not infallible, and that was my point. Sorry, Frank. Sorry, John. Ye might be gods among domainers, but ye are not true deities, much to the dismay of those who post their adulations of all ye do. 🙂
I did read Elliot’s article as well as the UDRP decision and found the panel’s decision to be the proper one. I have seen many, many decisions that I did NOT agree with, but that was not the case here. I failed to understand why Elliot would then question whether I actually read his article in its entirety, when it seemed obvious to me that I had, and was merely responding to his statements. I do understand that NA has agreed to transfer the domain, but I was saying that a price of one dollar would be most appropriate in this particular case. That’s all.
Mr. Bean
Nice to have you hear but why you objected to Elliot’s take on this case is not of our concern.
I of course respect all well thought out opinions so your certainly entitled to yours.
For me the case wasn’t about who was right or wrong but an illustration of the lack of the ability to appeal a UDRP and the fact that a decision that is “appealed” and won still has no effect on the UDRP decision.
Other than that welcome