Re: [nc-udrp] UDRP Questionnaire

[Dan Steinberg <synthesis@videotron.ca>]

Milton,

Thanks for the definition. It's one I can certainly live with. Just curious why you
inserted the word "operationally" in there.
Are there non-operational circumstances where this definition fails to apply?

Milton Mueller wrote:

> Dan:
> Operationally, the best definition of
> "cybersquatting" are the three prongs of the
> UDRP itself: a domain name registered that is
> identical or confusingly similar to a trademark
> in which the complainant has rights, to which
> the registrant has no rights and legitimate
> interests, and which has been registered and
> used in bad faith.
>
> >>> Dan Steinberg <synthesis@videotron.ca> 11/17/01 12:30 PM >>>
> John,
>
> A nice well-balanced position. I would have a hard time arguing with it.
> I have just one question:
> Can you define for me what constitutes 'run-of-the-mill cybersquatting'?
> Actually I would appreciate (seriously) a definition of cybersquatting in
> general.  When I was researching the French translation I could not find a direct
> word to translate it so I searched for a definition, a phrase, anything I could
> use....and found a few hundred different ones.  Given the short time-frame I
> chose to take the easy way out and leave the word in as-in (in English) as did
> Eric for the spanish translation.  But since the term keeps coming up I would
> like to get a definition I can work with in the future.
>
> "John Berryhill Ph.D. J.D." wrote:
>
> > From: "Katrina Burchell" <Katrina.Burchell@unilever.com>
> >
> > > It goes in favour
> > > of the trade mark owner (so some of you may be annoyed!)
> >
> > In an ideal world, one would expect most decisions to favor the complainant,
> > since in an ideal world meritless cases would not be filed.  That is one
> > fallacy advanced by the "foaming at the mouth" variety of UDRP critics who
> > claim that the overall 80% complainant win rate is, without more, suggestive
> > of bias.  There are some issues to be explored there, but the gross
> > statisic, without other analysis, is meaningless.  Simply scanning the list
> > of domain names involved in UDRP disputes is simple evidence that the Policy
> > has been effective to address run-of-the-mill cybersquatting situations
> > involving inherently distinctive and famous marks.  That shouldn't be at all
> > annoying to anyone.
> >
> > Substantively, I believe the Policy in its present form is very good, and
> > under any policy there will always be "bad" decisions either way, which is a
> > simple fact of life.  There are differences of interpretation among panelists
> > which has rendered the outcome of some recurring issues to be entirely
> > panelist-dependent.  But in the main, my observation is that "bad" decisions
> > tend to arise when panelists stray from the thrust of the Policy about which
> > there is little disagreement - that it was intended to be a lightweight
> > summary procedure for weeding out clearcut cases of abusive bad faith domain
> > registration, and not intended to make new law or provide a vehicle for
> > complex legal reasoning, balancing tests, or credibility determinations in
> > the face of conflicting evidence.
> >
> > The Policy is, in the main, balanced.  Some interpretations have not been.
> > Making the First WIPO report required reading for prospective panelists would
> > go a long way toward addressing activist law-making impulses.   The First
> > WIPO Report is unambiguously clear about the aims and limitations of the
> > Policy.  Alternative dispute resolution mechanisms work well when they are
> > based on an understanding of applicable law.  Where there is no applicable
> > law, arbitration proceedings are not a good vehicle for forging a new common
> > law which may be diverging from existing legal norms.  A perfect case in
> > point is the history of the cello.com domain name.  On the same facts where a
> > US federal judge, with more briefing and oral argument, could not find in
> > favor of either party on summary judgment and the case was later dismissed, a
> > UDRP panelist subsequenly decided, on the same record, to effectively
> > reverse a federal court decision.  The Policy is very carefully worded to
> > refer to it as an "administrative proceeding" for a reason, and is
> > inappropriate for reversing a final judgment of a court.
> >
> > I also do not agree with the "foaming at the mouth" camp's protestations that
> > the UDRP is some horrendous burden foisted on domain name registrants, and
> > should be eliminated.  The UDRP provides a real benefit to legitimate domain
> > name registrants who would otherwise not have the means to fight a court
> > battle in what would likely be a remote jurisdiction.  By the same token, it
> > lowers the barrier to the occasional specious claim made by a complainant.
> > But the UDRP at least provides a fighting chance that many domain name
> > registrants would not otherwise have.
> >
> > There are some technical problems, such as the "cancellation" outcome, which
> > have caused more grief for the unwary than are warranted.  Another issue is
> > educating the registrars.  I spent most of my working time today trying to
> > retrieve a domain name from a complainant who lost a UDRP proceeding, and to
> > whom the registrar then transferred the domain name anyway.  That's not the
> > first time I've had to deal with gross registrar noncompliance, and it is
> > time flushed down the toilet.
> >
> > That said, it has been my observation that, procedurally, my doctor suggests
> > I stay with representing complainants, because some of the procedural
> > nightmares on the respondent end of the process have at times driven my blood
> > pressure to dangerously high levels.  Receiving a three-inch thick book of a
> > "supplemental" to a ten page original complaint when you have three hours
> > left to respond according to the provider's supplemental rules is not
> > anyone's idea of fair.  And, yes, I've seen it happen.  But if any procedural
> > changes are determined to be warranted, the over-riding goal should be to
> > keep the entire process as simple and as understandabl as possible.
> >
> > In any event, this long-winded note was simply meant to note that in
> > evaluating responses, those from actual participants should be distinguished
> > from those of casual windbags  (other than me, of course).  No doubt there
> > will be those which express the view that the Policy is a crime against
> > humanity, but there is little reason to actively solicit that sort of input.
> >
> > John Berryhill
> > Philadelphia, Pennsylvania
>
> --
> Dan Steinberg
>
> SYNTHESIS:Law & Technology
> 35, du Ravin  phone: (613) 794-5356
> Chelsea, Quebec  fax:   (819) 827-4398
> J9B 1N1                 e-mail:synthesis@videotron.ca

--
Dan Steinberg

SYNTHESIS:Law & Technology
35, du Ravin  phone: (613) 794-5356
Chelsea, Quebec  fax:   (819) 827-4398
J9B 1N1                 e-mail:synthesis@videotron.ca