Good Summary of "dictionary word" cases

[jberryhill]

...which is why opting for a three member panel is important. One of the panelists in the dw.com dispute, brought by a German complainant, was a German national. He was the only one who disagreed with the reverse domain hi-jacking finding.

 

[Yoshiki]

...which is why opting for a three member panel is important. One of the panelists in the dw.com dispute, brought by a German complainant, was a German national. He was the only one who disagreed with the reverse domain hi-jacking finding.

For the DW.COM case, I agree with the German panelist's dissenting opinion.
I think he is partly right in saying "if, when responding to the Complainant’s opening letter, the Respondent had made an effort to explain to the Complainant the bona fide nature of its use of the Domain Name and the basis for the price it was quoting for the Domain Name, the Complaint would probably never have been launched. Under these circumstances, it would be unduly harsh to characterize the Complaint as reverse domain name hijacking" although I think the Complaint would be nevertheless launched.

More importantly, panelist's nationality should be neutral to both parties,
that is, for the DW.COM case, a German panelist should never have been included nor a Japanese one for the JT.COM case.

 

[Garry Anderson]

John> So, pray tell Garry, if your "Judge Judy" court were to rule on the jt.com case, and the domain registrant didn't respond to the subpoena and show up in court, to make it a fair comparison, what does Judge Judy do then? She does what any judge does - issues a default judgment in favor of the plaintiff.

A "default judgment in favor of the plaintiff"? - ooohh you little fibber you ;-)

Methinks you already know the reply John - as usual.

Davezan can make up his own mind

[Camera zooms into head shot of Judge Judy]

Judy> As the defendant is not present - I have to decide whether to proceed with an Absentia trial - or go on the evidence and facts before me.

Judy> Mr Plaintiff - I can tell you now - there is no need for this trial to go further - I have enough to make a decision...

Plaintiff> Thank you Judge - if you wrap it up I'll take it with me!

Judy> Did you see me stop talking?

Judy> Mr Plaintiff - You must know this name can also legally be used by other businesses for different goods - what exactly is the wrongdoing against you?

Plaintiff> Derrr... He was going to sell it to highest bidder.

Judy> Mr Plaintiff - it is called the free market or free enterprise - what are you doing wasting the Courts valuable time with a malicious suit?

Judy> The facts and evidence require the Court to rule in favor of Defendant - case dismissed.

[Camera outside courtroom on Plaintiff]

Plaintiff> I don't know what happened - I am dazed - when did they start want proof of the Defendants wrongdoing against us?

[Credits]

John> It is not talking about registering a dictionary word and then happening to sell it to a TM owner - it is talking about registering a dictionary word for the specific purpose of selling it to a TM owner. Those are two different things.

Fact - the DNS is not a replacement trademark system - ask creator Paul Mockapetris or Milton Mueller.

We are not talking about bank robbery here - obviously there is a difference - but no practical difference in the actions.

Somebody sees a dictionary word domain free and registers it - it could be absolutely any word ***certainly likely to be a trademark*** apple ball cat dog ... orange ... zulu - ANYTHING.

So what is the practical difference?

We know the word can LEGALLY be used by anybody else - with or without trademark or can be resold for such purpose.

The firm would have registered the word for trademark in SPECIFIC goods or service in a SPECIFIC country.

The word domain is registered without any such restriction (though must not infringe on trademark).

"Bad Faith" is the feeble excuse they use to pervert law - to avoid having the plaintiff PROVE what legal wrong they claim to have suffered at the hands of defendant.

Davezan1> Correct me if I'm wrong, but you indicated in your sig file or one of your posts at another forum that you uncovered some wrongdoing. Is that one of the
reasons why you believe so much that WIPO, UDRP, etc. are corrupt? I'm really curious as to know why you vehemently believe such.

I knew the whole system was corrupt from the first day I heard a little girl (Veronica) was being attacked by major company for the domain name that her dad got her.

Everything since only confirms this.

I understand why there is requirement for UDRP - but the rules are corrupt.

UDRP could be easily adjusted - to take into account things like prevention of overreach.

Davezan1> BTW, put yourself in the judge's or panelist's position regarding jt.com: if the respondent or defendant didn't reply, what would you do? Remember, there
are rules to follow.

I explain this above.

Garry> UDRP rules are corrupt rules.

Davezan1> That's your opinion, not mine.

It is demonstrable fact: When the name is/can be legally used by others - UDRP allows the plaintiff to win - without having to prove wrong done to them by defendent (contrary to law).

Davezan> The point is that you don't really need a "cause of action" or "what legal
wrong the plaintiff claims to have suffered [for] a court ...to order the defendant to do to compensate the plaintiff for that wrong" if you really feel like just doing it.

However - in Law you are required to PROVE IT.

Like I said to John - "Bad Faith" is the feeble excuse they use to pervert law - to avoid having the plaintiff PROVE what legal wrong they claim to have suffered at the hands of defendant.

Davezan> Only a dumbarse (sorry, I just love the second word) would know it's stupid
to bring it to Court knowing he/she/it can't prove it but insists on doing so.

They go to UDRP because they know the rules are such that they can 'steal' it.

How would you like being taken to Court as Defendant with the Plaintiff not having to prove you did wrong against them?

 

[jberryhill]

A "default judgment in favor of the plaintiff"? - ooohh you little fibber you ;-)

Yes, that's what happens when you don't show up in court - you lose by default, notwithstanding your idiotic fantasies about Judge Judy.

Davezan1> Correct me if I'm wrong, but you indicated in your sig file or one of your posts at another forum that you uncovered some wrongdoing. Is that one of the
reasons why you believe so much that WIPO, UDRP, etc. are corrupt? I'm really curious as to know why you vehemently believe such.

I knew the whole system was corrupt from the first day I heard a little girl (Veronica) was being attacked by major company for the domain name that her dad got her.

Pretty amazing, considering that the veronica.org incident happened prior to the UDRP. No girl was "attacked" - her dad got a letter from a TM lawyer for Archie comics. He wrote a letter back, explaining it was his daughter's name. That was the end of it - he still has the domain name.

In a letter responding to Grimes & Battersby, Sams wrote: "The Veronica.org domain name is owned by my 1-and-a-half-year-old daughter, Veronica Sams. Should you wish to take legal action, it is going to have to be against a toddler and her parents.

"Veronica's mother and I registered this domain through our family owned company on her behalf to commemorate her birth," the letter continues. "We are just now in the process of putting together her Web page. You will notice that we are utilizing the noncommercial domain 'org,' and do not wish to make any reference to your client, its marks, or its products."

Oh, yeah, you can take a look at what he is doing with his lovely daughter's domain name here: www.veronica.org. Yah - real noncommercial.... I can see how any little girl would be honored. I guess after five years, he's "still in the process of putting together her Web page."

 

[Dave Zan]

- to avoid having the plaintiff PROVE what legal wrong they claim to have suffered at the hands of defendant.

When you're able to dissect a problem to as many specifics as you can, you
have a better chance of solving it. It's just that UDRP has specified the "legal
wrong" more than a Court would.

UDRP might not look as legal as a Court case is. But because we all know how
time-consuming and costly a Court can be to solve that problem, there has to
be a less-costly and more-specific approach to it, right?

UDRP attempts to address that and other related issues, and it has its own
rules on what constitutes "legal wrong", Garry. It just sees it more specifically.

I might be out of line by asking this, but are arbitration and mediation centers
not "legal", either? Maybe, but if they'll solve the problem with less cost and
time needed yet in a fair and logical conclusion, who needs the Courts?

And remember, those arbitration and mediation centers are accredited with
the government agency assigned to handle their respective specific issues.
How much more "legality" do you need?

But then again, you consider WIPO, UN, etc. "corrupt". :-D

It is demonstrable fact: When the name is/can be legally used by others - UDRP allows the plaintiff to win - without having to prove wrong done to them by defendent (contrary to law).

Under whose law? The Court or the UDRP?

Remember my previous post: whoever provider or "venue" you choose is the
one whose rules you have to follow or risk losing your case.

If you feel the Court is more legal or more able to settle your dispute with the
other party, then be prepared to spend lots of time and money fighting for it
in that venue. And be ready for potential attorney grandstanding from the
other side, too.

However - in Law you are required to PROVE IT.

Like I said to John - "Bad Faith" is the feeble excuse they use to pervert law - to avoid having the plaintiff PROVE what legal wrong they claim to have suffered at the hands of defendant.

Consider these from the UDRP:

i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

How much more "legal wrong" do you need? And no, the Plaintiff/Complainant
has to prove the "legal wrong" based on any of those rules.

I'm not an attorney. But they seem reasonable to this ordinary layperson.

They go to UDRP because they know the rules are such that they can 'steal' it.

Pardon but who's doing the stealing? The Complainant or the Respondent?

Or rather, the Plaintiff or the Defendant?

How do you know the Defendant isn't "stealing" the traffic and potential
business the Plaintiff has spent time and money building for? That's one of the
things the complaining party must try to prove.

How would you like being taken to Court as Defendant with the Plaintiff not having to prove you did wrong against them?

Oh I'll cross that bridge again and again if I have to, Garry. But there's no way
I'll lose if the Plaintiff doesn't prove what wrong I committed.

Garry, I understand your stand about the need to prove the "legal wrong". But
consider, however, that some dispute resolution providers approach it a little
different than a Court would.

By the way, I just got this from arb-forum.com, and I think it said it best:

Warren Burger, former Chief Justice of the United States Supreme Court
"Our litigation system is too costly, too painful, too destructive for a truly civilized people."

Current Supreme Court Justice Sandra Day O’Connor
"The courts of this country should not be the places where the resolution of disputes begins. They should be the places where the disputes end–and after alternative methods of resolving disputes have been considered and tried."

Anyone who doesn't agree with those, please raise your hand.

 

[Garry Anderson]

John> Yes, that's what happens when you don't show up in court - you lose by default, notwithstanding your idiotic fantasies about Judge Judy.

You first have to be properly served with summons John ;-)

I used Judge Judy analogy to show how pathetic was the Claimants case.

The massive unbreachable chasm in 'your' argument is that THE DEFENDANT HAS COMMITTED NO WRONG AGAINST PLAINTIFF.

Please re-read prior sentence until you fully understand ;-)

It is Defendants Intellectual Property - they had the idea to get dictionary word domain first.

This word is/could be legally used by any number of businesses.

The plaintiff is being offered a dictionary word domain - a word as used legally by other businesses - that the plaintiff might want to buy.

If they do not want to buy domain - then somebody else will - or the domain owner can use it for whatever legal business they wish.

The crimes you have used before, of rape and murder, are not crimes because of intent - but because there is a legal wrong done to victim.

Garry> I knew the whole system was corrupt from the first day I heard a little girl (Veronica) was being attacked by major company for the domain name that her dad got her.

John> Pretty amazing, considering that the veronica.org incident happened prior to the UDRP.

It was this that allerted me that this was going to be a big problem - that corporations were going to bully individuals.

John> No girl was "attacked" - her dad got a letter from a TM lawyer for Archie comics. He wrote a letter back, explaining it was his daughter's name. That was the end of it - he still has the domain name.

A slight distortion John.

The girl's dad was not claiming to be Archie comics.

A letter from a big firm of lawyers would seem like an unprovoked attack to me.

There was some backlash to Archie comics before they gave in.

John> Oh, yeah, you can take a look at what he is doing with his lovely daughter's domain name here

So - he redirect to domain host.

Needs do, as needs must - the site is still available for his daughter to use.

Davezan> UDRP attempts to address that and other related issues, and it has its own
rules on what constitutes "legal wrong", Garry. It just sees it more specifically.

It deliberately does not include the SPECIFIC and essential legal requirement that the Plaintiff must prove Defendant did them wrong.

I offer you dave.com - how am I doing you "legal wrong"?

Davezan> Remember my previous post: whoever provider or "venue" you choose is the
one whose rules you have to follow or risk losing your case.

These rules were designed by legal experts - they all knew Plaintiff must prove Defendant does them wrong.

Davezan> How much more "legal wrong" do you need? And no, the Plaintiff/Complainant has to prove the "legal wrong" based on any of those rules. I'm not an attorney. But they seem reasonable to this ordinary layperson.

They were designed to seem reasonable ;-)

Consider now that every word is/can be a trademark used by many businesses.

The rules give every overreaching corporation free reign for unprovoked attack on resold domains.

If domain owner infringes trademark - then yes there is "legal wrong".

Garry> They go to UDRP because they know the rules are such that they can 'steal' it.

Pardon but who's doing the stealing? The Complainant or the Respondent? Or rather, the Plaintiff or the Defendant?

From the written tense, Complainant or Plaintiff - I know my grammar is poor ;-)

Davezan> How do you know the Defendant isn't "stealing" the traffic and potential business the Plaintiff has spent time and money building for? That's one of the things the complaining party must try to prove.

If the Plaintiff has unique name - then they may have a case.

If the Plaintiff uses dictionary word that word is/can be a used by many businesses - and no infringement etc. on their trademark - then they have no case.

Davezan> But there's no way I'll lose if the Plaintiff doesn't prove what wrong I committed.

That is what UDRP rules allow.

Davezan> Garry, I understand your stand about the need to prove the "legal wrong".

Thankyou for taking the time.

And I should thank John for his time also - even though he is 'wrong' ;-)

About the 'Pre-Courts' - the method of resolving disputes must be fair and take into account principles of Law.

Like the primary one of proving "what legal wrong the plaintiff claims to have suffered [for] a court ...to order the defendant to do to compensate the plaintiff for that wrong".

http://www.surch.co.uk/-/Cause-of-action.html

 

[jberryhill]

The massive unbreachable chasm in 'your' argument is that THE DEFENDANT HAS COMMITTED NO WRONG AGAINST PLAINTIFF.

It doesn't matter. If you don't show up, you lose. Also, you don't have to be served properly. If there were a monetary judgment against you, then, yes, you could challenge enforcement on the ground of improper service. However, in domain cases, the plaintiff gets the default judgment, sends it to the registrar, and the registrar transfers the domain name. Oh, I forgot, you're not familiar with this because you are an uninformed armchair keyboard jockey.

A letter from a big firm of lawyers would seem like an unprovoked attack to me.

There was some backlash to Archie comics before they gave in.

There was an exchange of letters, and a lot of pointless grandstanding. Mr. Sams uses the domain name as a commercial website. However, it's funny that you use this as an example of corruption at WIPO, since it was before the UDRP, and had absolutely nothing to do with it. My goodness, how horrible, someone had to spend postage to send a letter.