Amazingly the complainant made the argument that Havanna was not a generic term at all.
“”””Complainant argues that Respondent’s use of the disputed domain name prior to the dispute is not connected to a bona fide offering of goods or services since Havanna has no generic meaning”
But the domain name holder prevailed which is certainly good news in a forum where not all generic geo domains disputes are retained by the domain owner.
Here are the facts as found by the three member Panel:
“”Complainant sells its confections in countries in South America as well as Spain and France. Complainant commenced the operation of cafes where it offers its HAVANNA confections in 1995.””
“”Currently there are 178 such cafes in Argentina and 68 cafes located in other countries including Chile, Brazil, Paraguay, Bolivia, Costa Rica, the Bolivarian Republic of Venezuela, Peru, Mexico and Spain. Complainant is the owner of the trademark HAVANNA registered in the United States Patent and Trademarks Office on the Principal register on December 7, 1982 as U.S. trademark registration no. 1219322 in relation to biscuits. Complainant is also the owner of numerous trademark applications filed throughout South America.””
“Complainant submits that the disputed domain name was registered by Respondent well after the registration of the HAVANNA trademark in Argentina in 1997. The disputed domain name was registered on September 26, 2000, about three years later.”
The panel found:
“Complainant has established that it is the owner of the trademark HAVANNA registered in the United States Patent and Trademarks Office on the Principal register on December 7, 1982 as U.S. trademark registration no. 1219322 in relation to biscuits. The application for the trademark HAVANNA in the U.S. was filed on March 26, 1976 based on Argentine Registration No. 669,995 registered February 27, 1970.”
“The disputed domain name <havanna.com> was created on September 26, 2000. The disputed domain name was acquired by Marchex, Inc. sometime in 2005.”
“The Panel finds that Complainant has proven that the disputed domain name <havanna.com> comprised of the term “havanna” and the top level domain descriptor “.com” is confusingly similar to Complainant’s registered trademark HAVANNA .”
“Respondent argues that the term “havanna” in the disputed domain name <havanna.com> is a generic or descriptive word for the name of the capital of Cuba in the languages of Germany, the Netherlands, Sweden, Norway, etc.”
“The landing page associated with the disputed domain name is an advertising page composed of links to travel, hotel and related links of interest to persons who are considering or planning to visit the city of Havana or Cuba. Respondent argues that the generic use of the term “havanna” in association with links to the City of Havana and Cuba is a legitimate use of the term in good faith to attract Europeans considering a trip to Havana or Cuba who conduct an Internet search for “havanna”. In recent years over 114,000 Germans visited Cuba annually.”
“There is no evidence on the landing page associated with the disputed domain name to support a finding that Respondent is attempting to trade on Complainant’s goodwill associated with its trademark HAVANNA which are used in association with confections and cafes.”
“The evidence submitted by Complainant in this case does not support a finding that Complainant’s HAVANNA trademark was a well-known trademark outside Argentina. ”
“Complainant has not established any sales of HAVANNA confections in the United States of America where Respondent is located prior to 2005 when Respondent acquired the disputed domain name.”
“”Complainant argues that Respondent’s use of the disputed domain name prior to the dispute is not connected to a bona fide offering of goods or services since (i) Havanna has no generic meaning and (ii) the website has no specific content related to Cuba or the city of Havana. However, Complainant does not dispute (and Respondent has provided evidence) that the word “havanna” is a generic word for the name of the capital of Cuba in the languages of, inter alia, Germany, Sweden and Norway. Furthermore, Complainant recognizes that the parking page under the disputed domain name merely displays sponsored links related to flights to Cuba, hotels in Cuba, vacations in Cuba and links relating to the City of Havana, the capital city of Cuba. The fact that this is merely a parking page that does not contain specific content (other than the links) to Cuba and the city of Havana makes this no different. Previous UDRP panels have found that a landing page associated with a generic domain name incorporating advertising links relating to the generic subject matter can be a legitimate interest.””
“”The Panel finds that generic use of the disputed domain name in association with links to the City of Havana and Cuba is a legitimate interest.
Using the word “WINS” and UDRP in the same sentence seems odd.
Does anyone WIN in the UDRP travesty Court ? (besides a few lawyers)
UDRP will likely be another exhibit in the ICANN Museum – Part of the awful law (sometimes called Bad.Law) of the prehistoric Internet
Big Lie
Yes indeed someone wins and someone loses and the prize is the domain which is either transferred to the complaint or retained by the Domain holder
@Big Lie,
Maybe you’re right and it’ll end up collecting dust in the museum, but what would you replace it with? Just curious.
This decision includes a lengthy recap of the actual arguments in the case, which is unusual for UDRP decisions in general. So, it’s a good case for anyone interested in the nuts and bolts of how to put a response together.
What is frequently annoying, though, are statements like this one:
“Respondent states that the word “havanna” is the name of the capital city of Cuba in German, Dutch, Swedish, Norwegian, and other European Languages and is therefore presumably not entitled to protection.”
Well, no, it is entitled to protection in Argentina as a brand of snack food (they make a sort of chocolate covered cookie sandwich, sort of like what we’d call ‘moon pies’ in the US). It is *not* entitled to protection as an identifier of content relating to Cuba.
I don’t know why panels habitually make it appear as if the argument revolved around a trademark being “invalid”, when that wasn’t the argument at all.
seriously… this shouldn’t be happening. this is an abrogation of sanity.
One other minor note on “things one might notice by reading UDRP cases closely”:
Dealbook.com:
http://domains.adrforum.com/domains/decisions/1349045.htm
“A timely Response was received and determined to be complete on October 28, 2010.”
Havanna.com:
http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2010-1652
“The Response was filed with the Center October 28, 2010.”
Long day, that one.
“what would you replace it [[UDRP]] with? Just curious.”
===
1. UDRP would not exist….if ICANN had flooded the industry with new REGISTRIES and new Top Level Domains
2. Artificial Scarcity has helped the UDRP travesty continue
3. UDRP was largely the product of FIVE people – Not decades of case law
4. U.S. Federal Courts would have been one venue for Intellectual Property disputes – Such disputes do not get to court if Good.Law (negotiation) exists
This all yet another aspect of the Failed ICANN Experiment(s) – that some people seem to really like to keep alive – $$$$$
Mr. Berryhill,
Congrats on the decision. You are obviously very good at your profession.
That being said, what a bunch of BS! Why should domain holders have to pay $$$ to defend themselves against attempted reverse-hijackers? If anything, the complaintant should have to pay ALL legal fees if they lose the case.
I turned down two offers from a BIG company for Cheeseburger.TV this year. Do I now need to worry about getting hit with a UDRP because this company sells cheeseburgers, even though my only intention is to develop the domain into a site? As ridiculous as my concerns sound, I’m actually a bit serious.
Congrat’s John.
Big Cheese
Yes this is the situation we have where domain holders have to spend $5K to defend every ridiculous action that comes our way, with no repercussions to the complainant.
Interestly enough the new gTLD Guidebook sets up every more protect for “trademark holders” and less expensive methods for them to get domains, yet they are unhappy and want even more protections.
Join the ICA they will be fighting for UDRP reform
John
Congrats
@MHB,
Thanks, and will-do.
– TBC
“Join the ICA they will be fighting for UDRP reform”
===
When domains are FREE – the lawyers seem to lose interest
Yes, FREE domains are out there.
New DNS platforms from Very.Large.Companies will likely be ¢FREE¢
Penny Domains are coming just like Penny Auctions
@ John Berryhill
Question: Nice work …
Forced Arbitration , suspended first amendment rights
of a trial by jury for monitory disputes over $20 (by agreement?)
hum, just how does this
ex-discredited credit card collection agency do it?
Wait i know…
They have exclusive racketeering services with ICANN
of course makes much sense now, or am i missing something????
Correction:
@ John Berryhill
Meant to say Nice work AND …
(i better lay off the sauce)
“the situation we have where domain holders have to spend $5K to defend every ridiculous action that comes our way, with no repercussions to the complainant.”
====
For those just back from the latest ICANN Love.Fest
Does anyone comment to Rita UDRP Rodin about HER great solutions ?
How do people attend ICANN meetings and NOT bring up the “ridiculous” UDRP?
Was Kathy UDRP Kleinman also at the ICANN meeting ?
Was Kathy UDRP Kleinman also at the ICANN meeting ?
———————————————————————
i DON’T THINK THEY PAY YOU TO ATTEND! (cough)
ICANN meetings are FREE
…
but….People are PAID to attend….PAID very well to attend
…
DNS experts are paid $50,000 a DAY plus expenses
Yep, but since
when is a UDRP panelist a Expert,
except at Cut N Paste (ha)
Correction:
Internet Governance experts are paid $50,000 a DAY plus expenses
DNS experts are paid $5,000 a DAY plus expenses
One does not need to know squat about DNS to be an Internet Governance expert
By the way – Apparently $100,000 per DAY will be the going rate for some of the people being IMPORTED to the ICANN meeting in March 2011 in San Francisco. The same applies for the secret/private GAC meetings.
Rita Rodin and Kathy Kleinman CREATED the UDRP they are not “Panelists”
FIVE people were largely responsible for UDRP
Michael Froomkin (Miami Florida)
Rita Rodin
Kathy Kleinman (now part of .ORG PIR)
J. Scott Evans (Yahoo)
J. Cohen (Canada)
@ Big Lie Society
i DON’T THINK THEY PAY YOU TO ATTEND! (cough)
—————————————————————–
(cough) Did you NOT get the “JEST of my POST”
(or where you looking the other way, COUGH.
wait! here comes a posting barrage sorry is asked….
“domain holders have to spend $5K to defend every ridiculous action”
===
Why haven’t “domain holders” filed a Class Action lawsuit against the UDRP perpetrators ?
…for their costs and domain value losses, etc ?
“Do I now need to worry about getting hit with a UDRP because this company sells cheeseburgers, even though my only intention is to develop the domain into a site?”
That would be very unlikely. The circumstances of this particular case are that the Complainant does have a legitimate trademark in certain products in Argentina and other countries. As in many domain name disputes, it just happens that there is a general belief among certain elements of the trademark community that “having a trademark is enough”, and they do not recognize that using a word in connection with its primary meaning for advertising purposes is a legitimate use. So, to some extent, there is a certain amount of repetition in these cases. Having been to Argentina, I am aware that it is a particularly popular brand of snack food there – on par with Hostess or Hershey in the US – so I don’t fault them for wanting the name. They may simply have not been aware that “Havanna” is the name for “Havana” in a large number of European languages since, as far as they are concerned, the proper name is “Habana”.
Simply because someone else does not see things the same way that you do, does not make that other person evil, greedy, bribed or ill motivated. Again, it is just a fact of life that we all have our perspective based on our experience and knowledge, and if your approach to disagreement is to personally attack whomever does not see things your way, then I can guarantee that you are not going to manage to bring very many people around to your point of view.
Whether the UDRP exists or not, there is nothing that prevents anyone from making a legal claim in any forum on any basis. That’s nothing new, and it is certainly not unique to domain names. The risk of legal claims, even bad ones, is a risk in any line of business. The difference is that a lot of domainers have little experience in any line of business, and just don’t get that. I used to have a neighbor who managed a grocery store, and just about every month someone would spill mayonnaise on the floor, slip and fall from it, and then try to sue the store. If you want to run a business – any business – in which you are not going to be exposed to nuisance legal claims, then dream on.
A commenter above believes that such claims should only be brought in courts. One is entitled to that belief, but to effectively defend a claim in federal court is a much more onerous situation than exists with the UDRP. It is actually cheaper and simpler to file a claim in federal court, and I’m surprised that TM claimants don’t do that more often, since most domainers would have a tougher time effectively appearing and defending a lawsuit than a UDRP proceeding. But, it is cheap tough talk from folks who don’t have experience with either process.
“a lot of domainers have little experience in any line of business, and just don’t get that.”
===
When did registering a domain name enter one into the world of business ?
Are FaceBook users in the business of their names ?
How about Twitter users ? Are they now in the business of defending their names ?
Should the U.S. Government have required a unique FEIN for each .COM domain ?
…to ensure people they knew they were doing more than registering an ASCII string ?
Isn’t part of the real problem that the “legal community” has ferreted out domain names (and mostly .COM domains) as some sort of Adopted Trademark System ? without any U.S. Federal laws reflecting that.
In other words, would a better solution be to also have a .COM Registration trigger a U.S. Trademark application at the U.S. Patent and Trademark Office?
[By the way, people who are married for many years when faced with the
bizarre Divorce Courts discover long after the fact they have been operating
a small business with their spouse and no one mentioned that on the wedding
day or when the license was obtained. SURPRISE Couples have their clocks
cleaned by the “legal system” to get out, not in.]
“FIVE people were largely responsible for UDRP”
I don’t often respond to your nonsense, but that is simply not true.
The first draft of the UDRP was published in the final report of a two year consultative process that started at WIPO. Anyone actually interested in how the UDRP was developed might want to review the process, people, and organizations involved, starting here:
http://www.wipo.int/amc/en/processes/process1/index.html
http://www.wipo.int/amc/en/processes/process1/timetable/
July 8, 1998 Publication WIPO RFC-1 (terms of reference)
August 24, 1998 Deadline for comments on WIPO RFC-1
Early September 1998 Meeting of Panel of Experts
September 14, 1998 Publication of WIPO RFC-2 (issues to be addressed)
September – November 1998 Regional Hearings and Consultations
November 6, 1998 Deadline for comments on WIPO RFC-2
December 23, 1998 Publication of WIPO RFC-3 (Interim Report)
January – February 1999 Regional Hearings and Consultations
March 19, 1999 Deadline for comments on WIPO RFC-3
April 30, 1999 Publication of Final Report
If you take a look at the UDRP draft in that Final Report and compare it to the UDRP as adopted, there are some changes that were adopted by ICANN in response to commentary at the Santiago meeting, and the tireless advocacy on behalf of domain registrants by such folks as Kathy Kleiman of the Non-Commercial Users Constituency, who is one of the unsung heroes in this area.
@ John Berryhill & TheBigLieSociety,
Thanks. Within each of your posts rests valuable, thought-provoking content.
– TBC
“It is actually cheaper and simpler to file a claim in federal court, and I’m surprised that TM claimants don’t do that more often…”
===
Why would they do that (from South America) when they have the UDRP ?
It should be noted that the U.S. Federal Court route might only be a start down a very long road of satisfaction of any potential judgment. Do people think the .COM
Registry is easily going to turn over the domain ? What about the Registrar ?
When multiple .COM back-ends come into operation soon (Real Soon) it may become very hard to obtain a domain taken via any Kangaroo Court.
When multiple .COM back-ends come into operation soon (Real Soon) it may become very hard to obtain a domain taken via any Kangaroo Court.
….
If .COM is Cloned in ALL 50 U.S. States, then getting a judgment in ALL 50 U.S. States could be a very long road. That will especially be the case if U.S. Federal Courts learn to refuse to hear cases because of lack of jurisdiction.
The .COM Registration process can be easily set up so that One Input Fans out to all 50 States.
The UDRP attempted to create a World (Kangaroo) Court – Thanks to WIPO in Geneva Switzerland – Creators were wow’ed by the awesomeness of Geneva.
It is a shame the grief the UDRP has caused people.
Back in Feb on here…
Brian Wick posted this …
Furthermore, ICANN thru its Gestapo agents, like WIPO,UDRP is simply a “non-profit” club redefining itself (for-profit) every day.
Political remedy has been stoked…
when there is new money to be made then mountains can be moved.
Thieves Beware!
imo the udrp was a major compromise for the tm industry. and at this point it’s something they have come to accept and which, given the wipo connection, they realise it’s in their interest to protect. but it’s certainly not the ideal solution for them, if in fact an ideal solution does exist.
if we had to negotiate the whole procedure over again knowing what we know now about the continued growth of the internet, does anyone think we’d have a udrp anything like the one we have? in the 1990’s not many lawyers knew much about domain names. there were not as many “layers of clueless people”. the number of people at the negotiating table today would be a bit larger and would be a bit different. i doubt the outcome would be the same.
as easy as it is to be critical of the udrp, domainers should be glad most us tm owners are not using the federal courts for every alleged infringement. a sizeable number of domainers lack any genuine defenses to the claims brought against them. maybe federal judges should be glad too they don’t have to review all these ridiculous cases. as pointed out, these udrp cases are low priority for many of the panelists. do professors like grading exams? if the exams are all well-written maybe it wouldn’t be so bad. but how often is that the case?
if most domainers who are alleged to be infringing had good arguments, and potentially strong defenses against the claims against them, then it might be beneficial for these cases to go to the courts. but can we say that about most domainers?
using udrp is optional, but in certain situations there are restrictions about where a court action can be brought, based on the location of the registrar. what if the domainer is a registrar? maybe some tm owners want to avoid using foreign courts.
cloning the icann registries like .com makes a lot of sense. this is public information and it should be recognised by the public as such.
cctlds, who are not subject the same contractual obligations as icann tlds, don’t have to share their listings with the public. in effect cctlds, like .co, amount to a privately owned databases. they can much more easily filter and block access** without anyone telling them to do so.
** see .ly as an popular example
“maybe federal judges should be glad too they don’t have to review all these ridiculous cases.”
===
In a somewhat different U.S. Federal Court case, the judge drew attention to the
domain circus (aka domain industry). It was shocking to see a singular judge
(one person) show such a dismissive attitude to every-thing-Internet and
domains…AND…part of his justification was that Michael Froomkin a famous
“Law School Professor” was watching over everything.
The judge clearly made it sound like the Internet is Small.Potatoes and one
law professor can watch over it. Froomkin delivered UDRP.
“but can we say that about most domainers?”
I believe what we can fairly say about “most domainers” is that they have never received a UDRP complaint nor a judicial complaint.
What we can also say about “most attorneys” is that they do not file frivolous complaints.
What makes the process at all interesting are the exceptions on either side. In terms of numbers of domain names registered, trademark claims which go to either the UDRP or court are statistically non-existent.
“It should be noted that the U.S. Federal Court route might only be a start down a very long road of satisfaction of any potential judgment. Do people think the .COM Registry is easily going to turn over the domain ?”
Again, it helps to look at the facts. Here are selected docket entries from a case recently pursued by our friend, Steve Sturgeon, on behalf of a remarkable woman whose name was being used by a Dutch entity using a European domain registrar:
U.S. District Court
Eastern District of Virginia – (Alexandria)
CIVIL DOCKET FOR CASE #: 1:09-cv-01353-AJT-JFA
Jung v. CATHIEJUNG.COM
12/08/2009 1 COMPLAINT filed by Cathie Jung against CATHIEJUNG.COM (Filing fee $ 350.00 receipt number 14683010287). (Attachments: # 1 Receipt, # 2 Civil Cover Sheet, # 3 Cover Letter)(stas) (Entered: 12/11/2009)
http://www.archive.org/download/gov.uscourts.vaed.249032/gov.uscourts.vaed.249032.1.0.pdf
03/19/2010 14 Clerk’s ENTRY OF DEFAULT as to CATHIEJUNG.COM (stas) (Entered: 03/19/2010)
06/14/2010 21 ORDERED that plaintiff Cathy Jung’s motion for default judgment be, and the same hereby is, GRANTED; that default judgment be, and the same hereby is entered against domain name under Fed. R. Civ. P. 55(b)(2); that the domain name be, and the same hereby is, transferred to plaintiff pursuant to 15:1125(d)(2)(D)(I). Signed by District Judge Anthony J Trenga on 6/14/2010. (rban, ) (Entered: 06/14/2010)
http://www.archive.org/download/gov.uscourts.vaed.249032/gov.uscourts.vaed.249032.21.0.pdf
After some minor amendment to the order, Verisign did indeed transfer the domain name to the registrar designated by the plaintiff. These cases are processed through the EDVA all of the time. So, even with some minor procedural delays, I guess whether six months is a “long road” is fairly subjective.
There have been a large number of cases in the District of Nevada in relation to casino names which are filed on an assembly line basis by the Greenberg Traurig firm, along with a motion for preliminary relief, and which typically are processed in a couple of weeks from filing the complaint, the TRO motion, and getting the domain names transferred.
://www.wipo.int/amc/en/processes/process1/experts/index.html
Harald ALVESTRAND
…
Ken FOCKLER
…
Michael FROOMKIN
…
Donald HEATH
…
Philip SBARBARO
“There have been a large number of cases in the District of Nevada in relation to casino names which are filed on an assembly line basis…”
====
UDRP was claimed to be needed because U.S. courts could not handle the case load.
Why does ICANN continue to promote UDRP if courts now have “assembly lines” ?
://icannwiki.org/J._Scott_Evans
“J. Scott is an intellectual property attorny from Charlotte NC and former President of the IPC and one of the drafters of the UDRP.”
“J. Scott served as a member of the five member small drafting committee that assisted the staff at the Internet Corporation for Assigned Names and Numbers (“ICANN”) with the drafting of the Uniform Dispute Resolution Policy (“UDRP”) and the Rules of Procedure for the UDRP.”
Self-written descriptions on a wiki do not tell the entire story. The basic draft of the UDRP proceeded from the WIPO process. That was then taken into the ICANN process and after lengthy community input and comment, the resulting adopted changes were indeed implemented by a drafting committee to amend the WIPO draft into what became the UDRP adopted by ICANN.
To claim that the UDRP was written by five people – as if they had cooked it up themselves after an all-night bender, is inaccurate and untrue.
well put. in reading udrp decisions, we are only viewing the “exceptions”, so to speak. and for the most active domainers, they are no doubt very few relative to the total number of domains they own.
would the tm industry agree that even with routine use of udrp they are only touching a small portion of the total infringing use of domain names? statistically non-existent. but what about decisions that get hyped on the web. what effect does this have?
small numbers (statistically) might have disproportionately large effects? could a few highly discussed cases have a similar effect to presenting evidence that tracks a much larger number of cases over time? (who needs evidence when we can use hype?) and maybe some on the complainant side are interested in trying to influence behaviour? by creating “examples”?
“five member small drafting committee”
://icannwiki.org/J._Scott_Evans
“J. Scott served as a member of the five member small drafting committee that assisted the staff at the Internet Corporation for Assigned Names and Numbers (“ICANN”)”
://www.icann.org/en/comments-mail/comment-udrp/current/msg00020.html
“I am told that the small drafting committee has been formed. But this
piece of information can’t be found anywhere on the ICANN web site.” – Carl Oppedahl
://www.icann.org/en/comments-mail/comment-udrp/current/msg00042.html
“ICANN has neither the authority nor the resources to be a consumer protection
agency…” Mike Roberts – Interim President/CEO, ICANN
correction: cases tracked –> “clearly” infringing domain names tracked
@ Big Lie Society
John said he needs better proof then the icky-wiki reference …
Can you provide a seasoned path to substantiate …
this mystery 5 person claim after an all-night bender ?????
to be fair: or some on the respondent (or potential respondent) side are selectively picking examples of decisions that support their perspective.
“some on the respondent (or potential respondent) side are selectively picking examples of decisions that support their perspective”
If a state executes 1000 convicted murderers, and it turns out that 999 of them were in fact guilty, but that 1 of them wasn’t, which case suggests there may be a problem with that state’s death penalty review system?
“John said he needs better proof then the icky-wiki reference …”
It’s not a matter of “proof”. I provided the links to the WIPO process, and you can read their resulting draft UDRP, which is attached to the final report. There are a few differences between the WIPO draft and the final ICANN version. Yes, a very few people amended the WIPO draft to produce the final UDRP. That’s all there is to it. The UDRP was not written by a five person committee. The “small drafting committee” merely implemented the changes to the WIPO draft which resulted from the ICANN discussions and criticisms of the WIPO draft.
“served as one of the five members on the Small Drafting Committee”
://www.icann.org/en/comments-mail/comment-udrp/current/msg00058.html
“served as one of the five members on the Small Drafting Committee established under the Board’s Santiago Resolution and I assisted in the drafting of the Registrar’s Model Policy and Model Rules of Procedure submitted to the ICANN Board in Santiago.”
“drafting of the Registrar’s Model Policy and Model Rules of Procedure”
“domain holders have to spend $5K to defend every ridiculous action”
===
Where does that $5K go ?
What is the annual size of the “ridiculous action” industry ?
Who are the beneficiaries of the “ridiculous action” industry ?
Very diplomatic indeed:
So is this were the “ridiculous action industry”
got the jump start then?
://www.icann.org/en/comments-mail/comment-udrp/current/msg00058.html
://www.123cheapdomains.com/domain-names/staff-report-29sept99.htm
Rita A. Rodin (of Skadden, Arps, Slate, Meagher & Flom, retained by America Online, a member of the DNSO Registrars Constituency)
://www.wipo.int/amc/en/processes/process1/experts/index.html
…
Donald HEATH
“Mr. Donald Heath, as President and Chief Executive Officer of the Internet Society, leads a broad spectrum of activities focused on the Internets development and associated technologies, its international growth, availability, education, policies and evolution. He also manages the Internet Societys responsibilities for facilitating and coordinating Internet-related programs and initiatives around the world. Mr. Heath was Chair of the International Ad Hoc Committee (IAHC), a coalition of participants from the broad Internet community, working to satisfy the requirement for enhancements to the Internet’s global Domain Name System (DNS).”
the question is should one take into account prosecutorial discretion (the tm owners’ decisions to select certain domains and initiate udrp)?
could this be a factor in how innocent people (non-infringing domain owners) might be selected as suspects (respondents) and eventually might end up facing execution (udrp panel)?
to do this, one would have to look at all registered domains that are “apparently” infringing (all “apparent” murders), not simply ones that are subjected to the udrp (murder trials).
THE BIG FIVE:
I also served as one of the—–Five Members—-on the Small Drafting Committee established under the Board’s Santiago Resolution and I assisted in the drafting of the Registrar’s Model Policy and Model Rules of Procedure submitted to the ICANN Board in Santiago
—————————————————–
://www.icann.org/en/comments-mail/comment-udrp/current/msg00058.html
So was it indeed the original “five members” (on a all night tipsy bender binge )
that drafted the Registrar’s Model Policy and Model Rules of Procedure submitted to the ICANN Board in Santiago? 🙂
“should one take into account prosecutorial discretion” ??
====
“You don’t tug on Superman’s cape / You don’t spit into the wind / You don’t pull the mask off that old Lone Ranger / And you don’t mess around with BO”
The Small Five O
So was it indeed the original “Five Members” (on a all night tipsy bender binge )
that drafted the Registrar’s Model Policy and Model Rules of Procedure submitted to the ICANN Board in Santiago? 🙂
://www.icann.org/en/comments-mail/comment-udrp/current/msg00058.html
“to do this, one would have to look at all registered domains that are “apparently” infringing (all “apparent” murders), not simply ones that are subjected to the udrp (murder trials).”
Mmmm… the general approach in Western political philosophy relative to any system of justice is how well it protects the rights of the innocent, and not its effectiveness at rooting out the guilty.
It’s kind of interesting that if you look at, say, the US Constitution, you have the following things in the Bill of Rights:
4 – protection against unwarranted search and seizure
5 – protection against self-incrimination
6 – representation, speedy trial, jury, confrontation of witnesses, compulsory process
7 – jury trial in civil cases, facts not at issue on appeal
8 – no cruel and unusual punishment
There’s not a word in the whole shootin’ match about whether this is going to be an efficient method of fighting crime or righting wrongs.
It always makes me chuckle when Constitushun-lovin’ people complain about how “we are too concerned about the rights of criminals”. The bulk of the Bill of Rights doesn’t even kick in until you are accused of a crime. I mean, good golly, how many of us ever get a chance to exercise our Eighth Amendment rights! A whole Amendment – just for people who have been convicted of a crime.
Now, in the context of things like criminal acts, we are used to the notion that we normally aim to err on the side of letting a guilty person go free in the systems we construct to address crime. But we don’t evaluate whether, say, the Federal Rules of Criminal Procedure have an impact on the crime rate. We evaluate those rules in terms of fundamental fairness in terms of procedural outcomes, and nobody says, “Well, the murder rate is really high”.
To put it another way, I guess you could look at the UDRP as:
1. a “system for combating online infringement”, or
2. a “system for adjudicating claims of online infringement”.
Those two alternative views probably account for a lot of the differences in style and method among UDRP panelists.
And – last comment – ltd, remember it was Dec 13. In a few weeks you’ll see what I was doing in between posts on this thread.
always interesting to hear the jb perspective.
my thoughts were leaning toward view 1.
not sure why. might have been something i was reading recently. perhaps i was imagining that the problem of tm infringing domain names would seem, from a tm holders’ perspective, far too “unwieldy” for something like the udrp to “effectively” deal with. being that udrp is optional, and the tm owners are thus in sole control over whether it’s used or not, i think their perspective is worth considering. how do they see the problem? do they, e.g., consider preemptive approaches?
i’m not so much interested in how effective udrp is overall (numerous opinions to be found on that issue) as much as i’m interested specifically in how it’s applied.
as for the FRCP affecting crime rate. well i could see that as possible, in some tenous way, if the result of some rule is that prosecutors or defence counsel are for whatever reason consistently unable to do their jobs as effectively as one would expect them to. and as such this rule constently affects the outcomes of cases. if for example we assume that criminals pay attention to rates of incarceration for certain offences and that this influences their decision whether or not to commit them.
to make the example more concrete, imagine if the udrp had some real “teeth”, and the stakes for alleged infringers was much higher, but the published stats, showed that most all udrp cases were decided in favour of the respondent due to failure of the complainant to comply with some procedural rule. presuming those published stats are read by a large number of domain investors, would this affect the rate of cybersquatting? it seems to raise the question of what determines a person’s decision to engage in a particular behaviour. are the potential consequences for a behaviour more influential than its ethical, moral or legal status?
regarding the bill of rights, i’m not too well versed in the history of the period during which the us consituution was drafted. however i think it is significant in understanding what they were trying to achieve. please correct me if i’m wrong. as i understand it, the framers were looking for protection against a govt that had abused its ability to quickly proclaim what was a “crime” and what was not, not to mention its ability to selectively enforce the law, to suit its own financial interests. i imagine it would be difficult to deal with an overseas business partner that can at any time use its lawmaking and enforcment powers to swiftly put you out of business and lock you up. if that was the situation, it might explain why their focus in the bill of rights was on the abuses of govt power (the “crimes of govt”), not on crimes committed by citizens.
it really is a great document because it seems that almost all govt’s are extremely likely to abuse their power at some point. but how do you pass a “bill of rights” from within such a system? it’s inevitably going to be watered down somewhat to the extent it challenges the power structure of the existing framework. america got the chance to do it “on their own”, outside the system. it seems that the drafters understood the issues well and they did an admirable job addressing them.
correction: incarceration –> conviction
too lazy to do further corrections
“it seems that almost all govt’s are extremely likely to abuse their power at some point”
Exactly.
Where is the Economic IMPACT Study for the [UDRP Kangaroo Court System] that ICANN is supposed to prepare for the U.S. Department of Commerce ?
What has been the Economic IMPACT of UDRP ?
Who are the losers ?
What has it cost the naive ?
Who has Profited from the UDRP ?
How has Artificial Scarcity of new top level domains helped to perpetuate and memorialize UDRP ?
Big
Economic impact can also be measured by saving to trademark holders to get clearly infringing domains quicker and less costly than court cases
“Economic impact can also be measured by…”
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Sounds like MHB should be on the ICANN Drafting Committee for the Economic Impact Study of the UDRP – for the U.S. Department of .COMmerce.
ICANN spends $2,000,000 on studies – Inside work, air-conditioned and no heavy lifting
Big
Just understanding that there is more than 1 point of view on every issue and that there are abuses on both sides of the fence.
Domain holders are not right 100% of the time nor are trademark holders.
The sooner everyone recognizes that the sooner we can put into place some UDRP reform measures so a generic like Haywood is not lost and domain holders do not have to spend $5K to defend stupid complainants like I just did to win carefreehomes.com
“the sooner we can put into place some UDRP reform measures”
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Check out the new ICANN web site for the ICANN.Nation.State
Sounds like MHB should be on the ICANN Drafting Committee for the UDRP REFORM Study for the ICANN.Nation.State
ICANN.Nation.State will likely spend $20,000,000 on studies – Inside work, air-conditioned and no heavy lifting – Geneva.Switzerland
If the average-Joe, sitting at home watching the Godaddy ad on Super Bowl Sunday knew just how f*cked up the entire domain-process is, and that they could easily lose that great domain name they just thought-up, through a reverse-hijacked UDRP…well, they’d probably leave the visa card in their wallet and keep on watching the game. 🙂