Supreme Court Rules on WIPO Procedure Costs

[jberryhill]

Any updates on that "case"? Of course, no need to say if you're retained for
it, John.

Unlike Garry, I don't publish my confidential advice to others:

http://www.dnforum.com/showthread.php?t=66882

Bob contacted several people about his 'problem' - he was keen to prove himself innocent of these false charges.

Here is edited version of my reply:

That's the extra kick-in-the-ass which Garry provides the unsuspecting and gullible - there's no telling what kind of inadvertently damaging things he'll send to you or elicit from you, and none of that correspondence is protected by attorney-client privilege. On top of that, he'll go ahead and publish it.

 

[Garry Anderson]

John, sorry for taking a while getting back to you - but your post made me feel quite ill about myself - could I have really been that stupid to unintentionally mislead somebody?

Before we get to that:

John> what really happened is fabulously mundane - the court ruled that the plaintiff could be awarded policing and enforcement costs if the domain name registration is actually found to be illegal in an independent determination under national law.

This sounds quite reasonable - I see nothing wrong with this.

"The court cites UDRP 4(k) for the point about independent determinations under national law, and the court cites the Austrian trademark law for the actual law under which the independent determination is to be made."

Yes - nice try wasn't it ;-)

No doubt you can cite loads of trademark law on which independent determination can be made - ***the difference is in proving under Austrian trademark law***.

Under Austrian trademark law - don't they have trial court to decide upon the guilt or innocence of Defendant?

Major point being -> had they gone to court instead of UDRP - wouldn't they have to prove Defendant guilty of trademark infringement or abuse?

"M'lud, we merely wish to state that the defendant is liable for unlawful domain grabbing and we cite the actual Austrian trademark law which he violates." - "Case proven - next."

John> You really don't get how appeals work.

I think you will find that I do

John> NOBODY is appealing the issue of whether the domain registration was illegal. NEITHER the plaintiff nor the defendant were arguing that issue on appeal. THAT wasn't the issue before the court. THIS proceeding, at the appellate level, was not ABOUT whether the domain registration was illegal.

You know we both agree that this case "was not ABOUT whether the domain registration was illegal".

John> "John was found guilty of shoplifting, and sentenced to fifty lashes. Because that sentence violates the Constitution, we remand the case back to the trial court to sentence him to six months in jail under the shoplifting statute, like they should have done the first time"

False analogy - you are not being sending back to UDRP court to appeal a sentence.

UDRP cannot awarded costs - therefore there was nothing for you to appeal against.

A better analogy would be: "John was found guilty of stealing a loaf of bread in a biased civil court of shopkeepers lawyers, and ordered to give loaf back. Because this civil court is not allowed to award our costs, we are taking him to trial court (which would have required greater proof of theft had we gone there first) - without first having a trial to prove his guilt or innocence".

Where they say, "M'lud, we claim costs from civil court of shopkeepers lawyers, merely wishing to state that the defendant is liable for unlawful theft and we cite the actual Austrian law which he violates." - "Case proven - next."

You admitted what we both knew - that defendants guilt or innocence was not before the court.

A defendant is innocent until proven guilty - true or false?

In which trial court has the defendant been charged, tried and found guilty to enable liability for the costs incurred?

John> But what you absolutely fail to understand is this - in the arguments pro & con about whether WIPO costs are includable in trademark infringement damages, the underlying illegality of the domain registration is irrelevant.

John> Obviously if the domain registration was legal then the plaintiff isn't going to get any damages.

I do understand completely.

The fact is - we can see no evidence of a trial (under Austrian trademark law) that proves the defendant guilty - do we?

John> Nobody would discuss that point in either the decision, or in an article about the decision, because nobody would assume their reader is that freaking stupid.

The decision for costs could only be awarded - had the Defendant been found guilty of Trademark Law violation.

John> There had to be. You don't get into an appellate court unless you are appealing a ruling of a trial court.

Yes - I know there HAS TO BE something to appeal against - guess what it is.

John> What? You think you can wander into an appellate court with "I want you to award me damages for X"? What on earth sort of paper do you file to start one of these non-appeal appellate proceedings, Garry?

The only appeal that I can see, is for the costs incurred during the WIPO procedure, which presumably must have failed in a previous court.

We know that this was all they reportedly went to court for - "COSTS".

So again - in which trial court has the defendant been charged, tried and found guilty to enable liability for the costs incurred?

Barbara Kurz seems unable to give me answer - her email certainly did not imply that defendant had even been charged for violation of Trademark Law - let alone tried and convicted.

So - unless you can tell us any different - there is no evidence that the defendant has been charged, tried and found guilty for acting in violation of Trademark Law.

If true, any penny recovered in punishment, damages or costs was taken without regard to proving defendant guilty of violation of Austrian Trademark Law

Garry> What specific opinion of mine do you consider dangerous (and why) John?

John> You know full well that I cannot post about what someone has consulted with me in my capacity as an attorney.

Dirty trick John - that was not what I asked - was it?

John> This person, furthermore, lives in the US on a fixed income, has virtually no liquid assets, and owns a home. After consulting with you, this person felt perfectly fine ignoring the c&d letter he had received, and potentially exposing himself to the loss of everything he has in an action for which he had no credible defense or means of paying for. What you did was irresponsible and dangerous.

I was very shocked at this claim - it really made me feel sick.

My weekly pension is equivalent to your hourly rate - so know what this person would feel like were they even just had to undergo UDRP procedure.

Any litigation in the courts would be ruinous.

Like I asked earlier, could I have really been that stupid to unintentionally mislead somebody?

You had made previous unspecific statement on this - so then thought it bluster - you telling me to keep my "dangerous" thoughts to myself.

You know I would never advised anybody on these forums to go to UDRP or court without seeing a lawyer.

You know I have never advised anybody on these forums to ignore C&D letter.

Everybody on this forum knows that I have never say anything like "Reply to C&D telling them to stuff it - using their fanciful trademark is okay to sell a generic product - KodakTyres.com is perfectly fine".

Folks - does that really sound like me?

I spent ages searching for the word "generic" in my emails.

I could find nothing that could be taken as legal advice that [TM][product].[TLD] was "perfectly fine" in law.

I even found this posting sent to you in January 2000 (about dot reg) - it began:

"I have already declared my vested interest at start. For your information;
after being forced into retirement, I invested into domain names. Like any
investment, you put into that which gives best return. Hearing myself called
a cybersquatter, for buying *generic names* (as far as I knew), I looked
into it further. I found the authorities had done nothing to stop consumer
confusion - the main crux of trademark law is that consumer should have
confidence in source of goods. They did this despite there being an easy
solution. That should have been their first priority. Instead, I found
deliberate policies made to make it easier, cheaper and quicker for business
to take domains off owner."

The closest match that I could find for [TM][product].[TLD], to what you claim (what I believe you are talking about) - was an email sent Dec 2001:

Perhaps this is wrong case - however:

The trademarked business was know by public as a combined common word together with a product - nobody thought of it by just the common word.

I never told him to ignore any legal documents.

First email is indeed very clear that I am not a lawyer and he is likely to lose any litigation - therefore (unless he actually wants to lose case) obviously requires lawyer.

What lawyer does anyone know that have website complaining lowdly how corrupt UN WIPO and ICANN are?

Indeed the word is not fanciful at all, but as stated, is a common word and they would be overreaching their mark to claim intellectual property rights above all others to the use of word in all other goods or services.

Further - this word is used by thousands of registered trademarks in the US and UK alone.

Quite different from your portrayal.

Lest you forgot - overreach is to the detriment of the public and smaller businesses - something that lawyers and individuals in authority sometimes forget - or care nothing about like UN WIPO ;-)

Unless I am mistaken about case and it was another (in which you are correct) - then I will appologise unreservedly and admit you were right to rebuke me for such foolish carelessness.

John> You see what I mean, Garry? Because of the way you pointlessly blather on, people mistake you for an attorney.

Please disprove the following:

1. My facts are demonstrable.

2. My opinion is informed by facts.

3. Because of 1 & 2 - my opinion is hardly pointless.

4. Others on this forum make opinion that could be considered from attorney.

5. All people make mistakes.

6. I have and would never claimed to be an attorney.

John> I sue Mr. Webname for trademark infringement.

We have seen no evidence that anybody has been sued for trademark infringement - true or false?

We only know that somebody has been sued for damages - the costs incurred during UDRP.

http://www.internationallawoffice.com/ld.cfm?r=9027&i=38929

John> Unlike Garry, I don't publish my confidential advice to others:

http://www.dnforum.com/showthread.php?t=66882

John> That's the extra kick-in-the-ass which Garry provides the unsuspecting and gullible - there's no telling what kind of inadvertently damaging things he'll send to you or elicit from you, and none of that correspondence is protected by attorney-client privilege. On top of that, he'll go ahead and publish it.

Please make your own mind up about me:

1. Have you seen me advise anybody to ignore C&D letter or advise them not see a lawyer before going to UDRP?

2. Have you seen anybody complain about me putting up our correspondence of their case?

3. Isn't it my primary motivation in this to explain why the UDRP and ACPA systems are corrupt?

The facts are this:

I was asked by Bob to make comment on the forum and so offered to put up my previous email.

From http://www.dnforum.com/showthread.php?t=66882&page=2&pp=15

You make another false unsubstantiated claim John - here is extract of email to Mr. Larkin.

Garry> I will make my previous email to you public - how about that?

Bob> Yes, that would be ideal.

At least my claims have substance - like that you avoid talking about the fact that tort does not not have to be proven against the Complainant in UDRP - contrary to civil law ;-)

ends***

I want people to know the demonstrable fact that they are being deceived by corrupt authorities - please make up your own mind up about me.

I nor my sites are anti-authoritarian - quote from http://WIPO.org.uk :

"This site certainly is not anti-authoritarian, but in fact highlights the misuse of authority. Please note that very important distinction. There is explanation of how those at the top abuse this power. This is pro-trademark - so please, no spin from corrupt or ignorant critics. Who would want anybody to be conned by some fraudster passing themselves off as trademark holders?"

 

[jberryhill]

You admitted what we both knew - that defendants guilt or innocence was not before the court.

A defendant is innocent until proven guilty - true or false?

In a criminal proceeding, there is a presumption of innocence. In a civil proceeding there is no presumption of "innocence", as the words "guilt" and "innocence" have NOTHING to do with a civil proceeding.

So again - in which trial court has the defendant been charged, tried and found guilty to enable liability for the costs incurred?

Well, geez Garry, in a civil proceeding NOBODY is "charged, tried and found guilty", so if you are going to put it that way you can't be wrong.

The issue on appeal in this proceeding was whether the cost of a UDRP could be awarded in a trademark action subsequent to a UDRP. It could very well have been an interlocutory appeal, as noted above, which I'll assume you've never heard of.

An "interlocutory appeal" is an appeal taken on some specific issue prior to the conclusion of the actual trial. There are rules that vary from place to place on what types of intermediate rulings are ripe for an interlocutory appeal. For example, in criminal trials, you might appeal a trial court ruling on the admissibility of a given piece of evidence, since such a ruling would affect the course of the trial. Hence, it would be more efficient to put the trial on hold while running that appeal, instead of having to re-run the trial based on an appeal ruling on that evidence after the trial. I do not know the rules for interlocutory appeals in Austrian civil cases.

The upshot, however, is that, yes, you may very well be able to get a ruling on what kinds of things would be includable in a damage award, in advance of a trial court determination of liability. That does not mean that the plaintiff is going to get those damages without a ruling on liability later on.

Either way, the Supreme Court decision, and the article, refer the SC concurring with a lower appellate court. If you want to believe that one wanders into an appellate court with an original complaint not based on an appeal from a claim made in a lower court, you are free to believe that, I am finished trying to get you to understand what this sentence says:

The plaintiff went on to sue the defendant in Austria for costs incurred during the WIPO procedure, claiming them as damages.

"The plaintiff went on to sue the defendant" - you don't seem to understand the meaning of the words "A sued B" - i.e. A brought a lawsuit against B. Now, if your run into my car and I have to pay $1000 for repairs, it would be perfectly normal for one to say "John sued Garry for the cost of repairing the car", because that kind of sentence is normally used to describe what is the objective of the suit. You are suggesting that the sentence is intended to describe the cause of action - i.e. "John sued Garry for negligence", because the English word "for" can be used in phrase to describe either the objective of action or the reason for the action in the sentence.

Putting the sentence that way was a running gag in law school. If you hadn't prepared for class, and the professor called on you to describe what happened in a case, you'd have to find a way to stall while someone could pass you notes. So, you'd start off, in answer to "What happened in the case of X?" with... "The plaintiff sued the defendant." "For what?" "Uh, for damages"... brought down the house every time.

Your thing about "civil court" and "trial court" relative to the loaf of bread is incomprehensible - civil courts are trial courts. A better analogy would be that I steal a loaf of bread and I am convicted in a criminal court. Criminal courts don't award costs. Even though I've already had one trial, the shopkeeper can still sue me in civil court for the cost of the loaf of bread (and even though the criminal court doesn't award costs). That is why, for example, OJ Simpson could be found "not guilty" under a criminal standard of proof for murder, but also could be found liable under a civil standard of proof for wrongful death, in separate criminal and civil actions.

One remaining worthwhile note, is that in comparative international law, the term "civil law" has yet an additional meaning in the context of distinguishing English-style jurisidictions and Roman-style jurisdictions concerning the way they handle cases consisting of disputes between private parties (as opposed to the criminal system). Austria is a "civil law" jurisdiction, in that you have to plead under a specific, codified set of wrongs set forth in the civil code in order to get into court. In England and the US (except Louisiana), which are "common law" jurisdictions, you can get into court by basically complaining, "The SOB done me wrong", and the court will figure out whether it falls into some historical category of redressable wrongs. The fact that Austria is a civil law jurisdiction should make it even more obvious that it is less amenable to novel forms of civil action, and that you need a code violation to establish liability.

(the Louisiana exception is due to the fact that we bought Louisiana from the French after the Napoleonic Code, which was the first modern civil code in Europe, and from which the Swiss, German, and Austrian civil codes were modeled)

Barbara Kurz seems unable to give me answer - her email certainly did not imply that defendant had even been charged for violation of Trademark Law - let alone tried and convicted.

I'm not at all surprised that either (a) she can't understand the way you framed whatever question you asked, or (b) you can't understand the answer, since it takes years of experience to comprehend the comic-book understanding you have of legal procedure, and to parse your howlers. Per usual, the entire world evades Garry's questions and is "unable to give [him] an answer". The notion that someone can't understand the phrase "The plaintiff went on to sue the defendant" is probably difficult for her to pick up from whatever you wrote to her. On the other hand, I'm used to it.

Garry, have you ever noticed the pattern in your life of people who refuse or are unable to give you answers? It's a major theme in a lot of your writing. The UK TM office won't respond to your inquiries about the concurrent registration of "Budweiser" (you promised to report back on that); the USPTO and WIPO stopped corresponding with you on your .reg pet fantasy; etc., etc. Once again, the corrupt world avoids the piercing light of your genius.

It's astounding that you've found yet another lawyer who is "unable" to give you an answer. The entire bar, of course, is passing notes behind your back...

----

Changing channels to your reckless advice, I don't know why you are searching your old email. Your communication with this party (now that I've also dug up the old email) was conducted by PM.

Here's a little memory jog for you:

AlwaysSomething sent PM to me last night with the domain names in question.

For the record - these domains contain a generic term - it is my belief he certainly does nothing wrong.
__________________
Garry Anderson - Haverhill - UK
www.WIPO.org.uk - Not associated with corrupt UN World Intellectual Property Organization (WIPrg)
www.SKILFUL.com - Home Page

You know I have never advised anybody on these forums to ignore C&D letter.

Demonstrably false. Go read the thread:

http://www.dnforum.com/showthread.php?t=49979

Some guy posts that he received a c&d letter. Take a look at your first post in the thread, Garry. Only after someone pops up to inform this person of your classically irresponsible behavior do you say anything about getting a lawyer. The sum total of your response is:

Hello AlwaysSomething

Basically - you are correct - it IS a load of BS.

From my http://WIPO.org.uk site:

1 - virtually every word is (or can be) registered as a trademark many times over by different type of business in same or different country...

So whatever domain name you pick will be 'confusingly similar' to a trademark.

If you could legally use the name to open a new shop then there should be nothing stopping you from keeping the domain or selling it on to another.

The people responsible at ICANN and UN WIPO are aiding and abetting big business to overreach trademark - they are corrupt.

That's it. That's your advice to someone on the receiving end of a legal threat - "it is BS" and to go on about how corrupt the world is. He then comes back and thanks you for your advice. You don't think that is telling someone to ignore a c&d letter?

Here's the bonus round, Garry. He comes back and asks what he should do, and you say:

In my experience in this field, some put up a real good act of being vacuous of intelligence.

YOUR EXPERIENCE IN THIS FIELD? In my experience in this field, Garry, some put up a real good act of pretending to have experience in this field.

I don't mind your insanity, Garry - it is what keeps you entertaining. The dishonesty and irresponsibility are disturbing.

 

[Garry Anderson]

Sorry - I cannot answer today.

Quick scan:

John> In a criminal proceeding, there is a presumption of innocence. In a civil proceeding there is no presumption of "innocence", as the words "guilt" and "innocence" have NOTHING to do with a civil proceeding.

We have discussed this before - you know I knew this.

John, you must have known - I was using it for analogy that Appellant (or Claimant) has to prove tort against them.

Essentially - the Defendant (or Respondant) is innocent until Appellant proves this.

Garry> You know I have never advised anybody on these forums to ignore C&D letter.

John> Demonstrably false. Go read the thread:

Sorry John - clear spin by you.

Yes - "it is my belief he certainly does nothing wrong" - however where do I say "ignore C&D letter"?

Will get back as soon as possible - sorry.

 

[Garry Anderson]

Apology for not replying properly - couldn't be helped.

John - board members can see through your false claims about me (e.g. that I published private correspondence without permission).

They can also see you fail to answer very pertinent questions, like:

"Very simple question for you - we all know the SFR initials could be used for anything - so where is the tort in SFR.org case?"

Lucky I didn't hold my breath ;-)

I have been perfectly straight with you - answering questions without trying to avoid main point.

You know the UN UDRP is a corrupt process - devised by corrupt people whom failed to include an essential phase to prevent trademark overreach (we all know why - don't we folks).

Learned lawyers (like yourself) know what that phase is.

Please tell us John - why does Plaintiff/Claimant not have to prove wrongdoing against them?

Judge Judy would throw these corrupt cases out in two minutes flat.

Judy> Tell me, as Plaintiff, you must know this name can also legally be used by other businesses for different goods - where 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. So what you are saying then; you brought him to court knowing there was no wrongdoing against you. Case dismissed. Plaintiff pays $2,000 costs to Defendant for bringing a malicious suit.

Barbara Kurz seems very intelligent person and surely cannot fail to understand the point of my question.

You asked, "Garry, have you ever noticed the pattern in your life of people who refuse or are unable to give you answers? It's a major theme in a lot of your writing."

Yes - it is certainly most worrying.

People will note that most the answers were already known - just requiring confirmation.

Objective logic would give four main possible reasons for their failure to answer:

1. My questions were too difficult or illogical to understand.

No - all are very basic important questions based on known facts.

2. Those receiving questions are too stupid to understand.

No - certainly not through their lack of intelligence - all are expert in their fields.

3. Those receiving questions are too corrupt to answer.

Possibility.

4. Those receiving are too cowardly to admit the facts.

Possibility.

Perhaps you have another possible reasons for their failure to answer.

Can you truly say the questions you avoid are too difficult to understand?

Can you truly say the questions you avoid are illogical or not based on facts?

You also say, "Once again, the corrupt world avoids the piercing light of your genius."

Nice try ;-)

*******************************************************************************************
The whole deal - it does not take a genius to see through the lies and deception.
*******************************************************************************************

Did it take genius to see that blood is an obvious carrier of vCJD - two years before government 'experts' admitted it?

The answer is no.

Did it take genius to see that there was major underreporting of UK surgery errors - years before World Health Organization and British Medical Journal reported it?

The answer is no.

Regarding UK TM office official complaint that I "promised to report back on" - sorry, thought I did.

Unsurpringly - even though it was based on clear "lack of openness and honesty" they decided not to take it further.

As to "It's astounding that you've found yet another lawyer who is "unable" to give you an answer."

Shall we be kind and say; perhaps they are too cowardly to admit the facts.

You ask "don't know why you are searching your old email"?

When you told me that I almost made somebody homeless - it made me feel sick - I had to find out if your claim was as you reported.

To answer your question "You don't think that is telling someone to ignore a c&d letter?"

No - reporting that UDRP is demonstrably corrupt is certainly NOT the same as telling them to ignore a c&d letter.

If anything - it is implying that they will need a lawyer to protect them.

Back to the thread topic - easy question - nobody (including Barbara and yourself) has shown evidence that the Defendant has gone through the court process that would require proving trademark violation (to get damages or costs) - have they?

It is easy for you to say they should have gone through it - even I said that

 

[jberryhill]

Back to the thread topic - easy question - nobody (including Barbara and yourself) has shown evidence that the Defendant has gone through the court process that would require proving trademark violation (to get damages or costs) - have they?

When do you plan to demonstrate an understanding of the phrase "interlocutory appeal"?

When do you plan to explain the procedure by which one gets into an appeals court without a lower court decision which to appeal?

This thread has exhausted its usefulness.

 

[Garry Anderson]

John> When do you plan to demonstrate an understanding of the phrase "interlocutory appeal"?

I understand it perfectly, thank you.

Article says, "In theory, the same is true for a claim requesting the transfer of the domain name, although the Supreme Court has yet to rule on this issue."

The request for the transfer of the domain name is before the court - presumably simply using UN UDRP decision - not that of 'greater crime' - proving trademark violation.

If instead, proving trademark violation is at issue (using legal standards) - then you will see me apologise to you on this thread.

I FULLY ADMIT THERE IS POSSIBILITY YOU MAY BE RIGHT STILL.

My opinion is still based on "balance of probability".

John> When do you plan to explain the procedure by which one gets into an appeals court without a lower court decision which to appeal?

Quote: "The only appeal that I can see, is for the costs incurred during the WIPO procedure, which presumably must have failed in a previous court. We know that this was all they reportedly went to court for - "COSTS".

John> This thread has exhausted its usefulness.

And so, John has spoken ;-)

If you do not wish to apologise for your false accusation - and you do not want anybody else to contribute - or wait for my apology - then I guess it is.

We all know by now, that you do not want to answer "where is the tort in SFR.org case?" - or why "Judge Judy would throw these corrupt cases out in two minutes flat".

Has anybody noticed how Judge Judy can see straight through the B.S.?

I also take it you agree, "it does not take a genius to see through the lies and deception" ;-)

You question "my experience in this field" and would never admit me of having any intelligence whatsoever - just accuse me of insanity, dishonesty and irresponsibility

I am just ordinary man - asking basic questions about what the authorities are telling us - and finding demonstrable lies and deception.

 

[jberryhill]

"The only appeal that I can see, is for the costs incurred during the WIPO procedure, which presumably must have failed in a previous court. We know that this was all they reportedly went to court for - "COSTS".

Duh, Garry, nobody was appealing the issue of whether there was a trademark violation. But what they "went to court for" - the trial court BELOW the appellate system - was damages incurred by trademark infringement.

Have you ever noticed in these dumb threads, that you never bother to research any of your facts? There is no mystery about what happened, since the intermediate appellate court decision is ALSO available online.

http://www.internet4jurists.at/entscheidungen/ogh4_42_04m.htm

Der Beklagte verkennt damit die Grundlage des gegen ihn erhobenen Schadenersatzanspruchs. Die Klägerin nimmt den Beklagten nicht deshalb auf Schadenersatz in Anspruch, weil er das Übertragungsbegehren bestritten hat, sondern weil ihm sittenwidriges Domain-Grabbing vorzuwerfen ist und er dennoch die Übertragung der Domain verweigert hat. Domain-Grabbing begeht, wer - wie der Beklagte - bei Reservierung und Nutzung eines fremden Zeichens als Domain in Vermarktungs- oder Behinderungsabsicht handelt; er verstößt damit, da mit der Registrierung des fremden Zeichens ein ad hoc-Wettbewerbsverhältnis begründet wird, gegen § 1 UWG (stRsp ua 4 Ob 139/01x = MR 2001, 245 [Korn] - Taeglichalles.at mwN).

What this is driving at, in a nutshell, is EXACTLY what you fail to understand. The case in the trial court was not brought to recover 'compensation for the WIPO procedure', it was brought to recover damages for violation of the Austrian trademark statute which, in these circumstances, INCLUDE the expenses associated with the WIPO procedure.

Even if your German is worse than mine, you cannot fail to notice that both of these courts seem to keep coming around to § 1 UWG. Now just why do you think they keep talking about the Austrian trademark statute?

 

[Garry Anderson]

Sorry John - but there is not much difference between us.

Anybody reading this thread will see, we have said very much the same things.

Like you say - they mention § 1 UWG.

But the difference is in proving it.

You say they will prove trademark violation by the defendant - I say they will not - they will just mention it.

We both know that your opinion on this requirement is FACT - 100% correct in terms of the law - however, we also know as FACT that the law is not followed in UDRP.

Am I correct in thinking that this, in a nutshell, is the difference between us?

 

[jberryhill]

You say they will prove trademark violation by the defendant - I say they will not

Hmmm... let's see... The domain registrant was an IT consultant for a company having the TM "DELIKOMAT". He registered the domain delikomat.com and pointed it at a delicatessen affiliate program. During the UDRP, he lied about having ever worked for the company.

None of those facts are in dispute. Just what do you think needs to be proven?

And, what you still can't grasp, the question on an interlocutory appeal is "If trademark infringement is shown, can the cost of a WIPO proceeding be included in damages"?

Answering that question in the affirmative does not require proof of trademark infringement, since that is the premise of the question.

I suppose that when your wife asks, "If I make liver for dinner, will you eat it?" you answer by saying, "But you haven't made liver for dinner. How can I decide whether or not I will eat liver if you haven't cooked any?"

You have made it abundantly clear that you (a) have not read the actual decisions about which you are flaunting your vast and impressive ignorance, and (b) you aren't going to.

 

[Garry Anderson]

I do understand premise based on affirmitive answer.

John - when have I said Defendant is innocent - have I not said there just should be legal ruling in the court on his action (as you have)?

The basis of the article was UDRP Complainant costs can be recovered as damages in court.

Had this been SFR.org - the main argument would still be the same - a person is 'innocent' until proven guilty in a court of law.

After all, SFR.org was an unlawful, bad-faith registration of a domain name - wasn't it John?

 

[jberryhill]

a person is 'innocent' until proven guilty in a court of law.

No.

This is the umpteenth time you have put forth the standard of proof in a criminal case, dude. I can't figure out why you keep repeating that line.

There are NO presumptions of non-liability in a civil case, and the concepts of "guilt" or "innocence" are wholly irrelevant. Civil cases are determined on a balance of probabilities. If the evidence suggests it is a scintilla over 50% more likely than not that the defendant is liable, that's enough. It is not about "beyond a reasonable doubt" or "innocent until proven guilty" - those are concepts which are only relevant to criminal law.

People who see the world in stark tones of black and white have a hard time with that, I suppose.

Somewhere back in the archives here, I wrote a fairly long piece on the nature of "proof" in civil disputes, and how it differs from "proof" in either a mathematical sense or in the sense used in criminal law. A fact is "proven" in a civil case when it has been shown to be more likely than not.

The basis of the article was

...irrelevant. If you want to know what really happened, then go read what really happened, instead of a brief summary of one person's view of the outcome.

After all, SFR.org was an unlawful, bad-faith registration of a domain name - wasn't it John?

I have no idea, nor do I particularly care. My comments on that case were directed toward the use of the word "generic" in trademark law, and the nature of "proof".

 

[Garry Anderson]

John - on this thread we agreed on nearly everything.

Garry> a person is 'innocent' until proven guilty in a court of law.

John> No. This is the umpteenth time you have put forth the standard of proof in a criminal case, dude. I can't figure out why you keep repeating that line.

You treat me like an idiot - please do not answer that ;-)

I enclosed the 'innocent' in quotes for a reason - guess what - see next paragraphs.

John> There are NO presumptions of non-liability in a civil case, and the concepts of "guilt" or "innocence" are wholly irrelevant. Civil cases are determined on a balance of probabilities. If the evidence suggests it is a scintilla over 50% more likely than not that the defendant is liable, that's enough. It is not about "beyond a reasonable doubt" or "innocent until proven guilty" - those are concepts which are only relevant to criminal law.

Quote: "Cause of action" encompasses both the legal theory of what legal wrong the plaintiff claims to have suffered, and the remedy, which is what a court is allowed to order the defendant to do to compensate the plaintiff for that wrong.

The points a plaintiff must prove to win a given type of case are called the "elements" of that cause of action.

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

The plaintiff must prove - on balance of probabilities - the "legal wrong" they "claim to have suffered" by the respondent - true or false?

Until they do so - then the respondent has not been proven to have done a "legal wrong" - true or false?

That is practically like - "innocent until proven" of doing a "legal wrong" - isn't it?

I understand the nature of "proof" in civil disputes - thank you.

Garry> The basis of the article was

John> ...irrelevant. If you want to know what really happened, then go read what really happened, instead of a brief summary of one person's view of the outcome.

The article was under discussion - it was in first post.

The person's view was that of a legal expert - should we disregard your views in such a manner?

Sorry - but I take all expert views seriously - even when they get it wrong ;-)

After all - you know I have proven them wrong before.

Garry> After all, SFR.org was an unlawful, bad-faith registration of a domain name - wasn't it John?

John> I have no idea, nor do I particularly care. My comments on that case were directed toward the use of the word "generic" in trademark law, and the nature of "proof".

Quote from article: "The Supreme Court held that costs incurred during such a procedure [UDRP] are a result of the unlawful, bad-faith registration of a domain name."

Therefore, this could have also been said of SFR.org.

And there was me thinking that you would finally admit - that UN UDRP is a corrupt process designed by corrupt people - the plaintiff not having to prove the "legal wrong" they "claim to have suffered" at the hands of respondent.

No chance - aye John.

 

[jberryhill]

The person's view was that of a legal expert - should we disregard your views in such a manner?

What you are keying on are some phrases in the article which you are clearly misinterpreting. If I write in one language, and have short summaries translated into a language other than my own, then it is not going to keep me up nights worrying that an English eccentric might misinterpret what I am saying. When I read the article, I had no problem understanding what happened. If you want to "discuss the article" and play word games, you can do that on your own. I had the mistaken belief that being presented with, not one, but two, original documents relating to the case, that your completely loopy interpretation of the article could be altered. I was wrong.

The last part of your post is incomprehensible. If the complainant in the SFR case wants to proceed in whatever is the relevant national court, and if there is a basis for finding jurisdiction and liability in that court, then, sure, if the court determines there was a trademark violation, then awarding the cost of the UDRP proceeding among the damages would be no big deal.

You don't seem to grasp what happened in this Austrian proceeding, and you don't want to. The sentence you quote above:

"The Supreme Court held that costs incurred during such a procedure [UDRP] are a result of the unlawful, bad-faith registration of a domain name."

...uses the word "unlawful". Do you see that word in that sentence? The presence of the word "unlawful" is usually a signal that someone is talking about a law somewhere. And, this may come as a shock to you, if you READ THE COURT DECISION, they even identify the law under which the "unlawfulness" has to happen in order to qualify for a damage award of any kind.

And, sorry, unlike you, I am not going to agree that Prof. Milton Mueller, and Prof. Michael Froomkin, both of whom contributed to drafting the UDRP are corrupt.

 

[Garry Anderson]

John> If you want to "discuss the article" and play word games, you can do that on your own.

Nice try - I did not play word games - just gave opinion on what was and wasn't said.

The documents showed nothing of substance to change this.

John> The last part of your post is incomprehensible. If the complainant in the SFR case wants to proceed in whatever is the relevant national court, and if there is a basis for finding jurisdiction and liability in that court, then, sure, if the court determines there was a trademark violation, then awarding the cost of the UDRP proceeding among the damages would be no big deal.

You decided to ignore the major point again - SFR case was clearly not a trademark violation - the UN UDRP system is totally corrupt - you and all the other lawyers know this.

Forum members can see you ignore this point over and over again.

John> And, sorry, unlike you, I am not going to agree that Prof. Milton Mueller, and Prof. Michael Froomkin, both of whom contributed to drafting the UDRP are corrupt.

Another nice try John ;-)

Surely, it depends entirely what they had to contribute, how they are funded and a few other factors?

From what I have read of them - I am quite sure that they would not advocate trademark overreach and would certainly not deny that the wrong against the plaintiff has to be proven - like in any other civil action.

What is it about the following that you did not understand?

Quote: "Cause of action" encompasses both the legal theory of what legal wrong the plaintiff claims to have suffered, and the remedy, which is what a court is allowed to order the defendant to do to compensate the plaintiff for that wrong.

The points a plaintiff must prove to win a given type of case are called the "elements" of that cause of action.

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

 

[jberryhill]

The documents showed nothing of substance to change this.

You didn't read them. In particular, you didn't read the intermediate appellate court's recounting of the procedural status of the case and where the appeal came from. You were actually trying to suggest there was no trial court from which the appeal was taken.

You decided to ignore the major point again - SFR case was clearly not a trademark violation - the UN UDRP system is totally corrupt - you and all the other lawyers know this.

Did I say it was a trademark violation? No. What I said was, and what the Austrian Supreme Court decision said (which is the "point" of this discussion) was if there is a trademark violation under the relevant national law (and they identified the specific Austrian law), then a plaintiff can recover UDRP expenses. That was the only point of the decision that started this thread. How the "major point" became SFR is a mystery to me. It is also a mystery to me how a few stupid decisions out of several thousand render any human decisionmaking process "totally corrupt".

Have you ever made a mistake? Does that make you a complete failure?

Even courts, in which you place so much reliance, get it wrong. The barcelona.com case was wrongly decided under the UDRP. So, the domain registrant took it to court. The court agreed with the UDRP decision. So, the domain registrant filed an appeal. I didn't see you that day in the Fourth Circuit Court of Appeals, but I was sure there. On appeal, the Fourth Circuit got it right.

Was the trial court "totally corrupt" for agreeing with the WIPO decision?

Do you think courts always get it right?

The points a plaintiff must prove to win a given type of case are called the "elements" of that cause of action.

That's right, Garry, that defines a "cause of action". And when the only issue on appeal in a case is whether a particular form of damages is awardable for that cause of action, then NOBODY is going to sit around and discuss the elements of the cause of action in that appellate decision - BECAUSE THAT IS NOT WHAT THE APPEAL WAS ABOUT.

Congratulations. The cause of action was violation of the trademark statute. The question on appeal was "If the cause of action is established, then are UDRP expenses awardable as damages?" How on this earth is it necessary for the elements of the cause of action to be even MENTIONED in an answer to that question? The COA is one of the "givens" of that problem.

Now, like it or not, the root server system for the internet is run under a contract with the US Department of Commerce. Among the things the US government required ICANN to do was to take into account "recommendations made by the World Intellectual Property Organization (WIPO) concerning: (i) the development of a uniform approach to resolving trademark/domain name disputes involving cyberpiracy". Now, ICANN was required, by the US government, to do that. You might consider it corrupt to do what one's contract with the US government requires, but I guess people in the US see it differently.

And, finally:

you and all the other lawyers know this.

From paranoid to psychic in one phrase. That's pretty good. I told you, Garry, all of the lawyers on planet earth are engaged in a massive coverup here. If they didn't pay me handsomely for wasting your time, I'd find better things to do.

 

[Garry Anderson]

Dear John - it is getting easier to see through - you seem to be trying to divert attention from the main crucial point again ;-)

You know - from "cause of action" link.

The "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".

John> You were actually trying to suggest there was no trial court from which the appeal was taken

NO - never did - I said, "which presumably must have failed in a previous court. We know that this was all they reportedly went to court for - "COSTS""

Repeat - like it was stated what they went for.

Garry> You decided to ignore the major point again - SFR case was clearly not a trademark violation - the UN UDRP system is totally corrupt - you and all the other lawyers know this.

John> Did I say it was a trademark violation? No. What I said was, and what the Austrian Supreme Court decision said (which is the "point" of this discussion) was if there is a trademark violation under the relevant national law (and they identified the specific Austrian law), then a plaintiff can recover UDRP expenses. That was the only point of the decision that started this thread. How the "major point" became SFR is a mystery to me. It is also a mystery to me how a few stupid decisions out of several thousand render any human decisionmaking process "totally corrupt".

Hello - we all know you did not say SFR.org was a trademark violation.

The "major point" is not specifically SFR - but that which ***blows everything else out of the water***.

You know what - that which exposes the lie.

John> Have you ever made a mistake? Does that make you a complete failure?

Do such large numbers of people in legal establishment "make such a mistake" - only a stupid person would think so.

Although, we have all seen purposeful fraud - like Enron and Worldcom.

Let's make this completely objective and remove personalities - by stating a FACT:

Any lawyer that says they do not understand one of the first principles of law (i.e. that the plaintiff must prove the wrong done to them by defendent) - then that lawyer is either a liar - or totally incompetent.

Perhaps you have another explaination?

We can all see that this first principle of law is not in corrupt UN UDRP.

It can be seen by everybody - that you call me names again - rather than directly answer the crucial main point.

 

[jberryhill]

NO - never did - I said, "which presumably must have failed in a previous court. We know that this was all they reportedly went to court for - "COSTS""

That's right. Everybody goes to court for damages (with the minor exception of suits seeking solely injunctive or declaratory relief). If I'm injured, then I go to court for "LOST WAGES" due to the injury. "LOST WAGES" is not a cause of action, it is what I am seeking to recover. These people went to court to recover "COSTS". That's what the freaking sentence says.

The cause of action for my seeking "LOST WAGES" might be negligence, it might be assault, whatever, but the point is that I am going to court to recover "LOST WAGES".

In the delikomat case, the Complainant went to court to recover "COSTS" incurred by the violation of their trademark by a lying IT consultant.

We can all see that this first principle of law is not in corrupt UN UDRP.

The UDRP is a non-binding dispute resolution system which is built into a contract.

If you want to, you can draw up a contract with someone which says, "All disputes under this contract shall be decided by a toss of the coin" or any other dispute resolution mechanism you want. The UDRP, by its own terms, specifically states that either party can go to court if they don't like the UDRP decision, and the registrar is NOT PERMITTED to transfer the domain name in the event that happens. So there is absolutely no diminution whatsoever of any rights that anyone would have in court, because there is absolutely nothing stopping either party from going to court.

What you completely fail to recognize, because you are totally unfamiliar with the practical realities in this field of law, is that domain registrants have a better shot at winning UDRP disputes than they do court cases, and the numbers prove it.

Peta.com - a parody site, "People Eating Tasty Animals", was taken to court by PETA, People for the Ethical Treatment of Animals - The outcome was that the domain registrant not only lost the domain, but also had to pay damages to PETA.

VW.net - a domain name owned by a legitimate software company, Virtual Works. They were taken to court by Volkswagen, and lost big time.

Ereferee.com - An "e"-[generic word] domain. Taken to court by the owner of a registered trademark for "Referee" magazine. Another expensive loss for the domain registrant. In the UDRP proceeding over ereferee.com domain, the domain name registrant WON the UDRP, but LOST in court. How is that possible, Garry?

WDR.org - German Wolf Dieter Roth had wdr.org. A German court decided that brand names take precedence over a person's initials, and found against him in favor of a German TV and radio station, the “West-Deutscher Rundfunk”. Compare that outcome to the UDRP cases jal.com and afl.com in which UDRP panels ruled that individuals had the right to keep their personal initials as domains, against Japan Airlines and the American Football League.

So, Garry, would you prefer the UDRP or the courts of Germany in an initialism case? You go on about your favorite list of bad cases, but you refuse to take a systematic view of dispute procedure outcomes.

The list goes on and on. The bottom line is that domain registrants not only lose their domains MORE frequently in courts than in the UDRP, but it is MORE expensive AND they are assessed damages.

On the other hand, defending a UDRP complaint is cheaper, easier, has a greater win probability for the domain registrant, and a victory for the registrant can persuade the TM claimant that maybe they had better try something other than listen to their newly-crowned losing lawyer who persuaded them to try the cheap route in the first instance.

A typical UDRP response takes about 5-7 hours to crank out for experienced attorneys such as Ari Goldberger, Howard Neu, Steve Sturgeon, Zak Muscovitch, myself and others. A reasonably savvy and well-spoken domain registrant can do a very good job of it without hiring anyone to help. A simple court case requires a much greater commitment of time, expenses, and travel, which renders the UDRP an incredible equalizer against the influence that money has in actual litigation.

Do you think the owners of mercedesshop.com would have prevailed in a court case against Daimler Chrysler? Do you think that the individual who registered milesandmore.com would have won against Lufthansa? Do you seriously believe a small computer company with dw.com would have beaten the German state broadcasting corporation, Deutsche Welle in court? All of these UDRP cases were won by domain registrants who would not have had the means to do so much as show up in a remote court, where the actions would have been brought.

In the cityofsalinas.com dispute, freedom-of-information requests after the proceeding showed that the City of Salinas paid $21,000 in legal fees alone to the attorney they hired for that complaint. The domain registrant paid a small fraction of that amount, and gave the City a generous helping of whoop-ass.

It is your complete unfamiliarity with how things work in the real world which renders you utterly incapable of grasping the simple fact that the UDRP, by its own terms, does not take anyone's legal rights away from them, and compared to other contractual dispute resolution mechanisms is better than most.

I'll give you an example. The same NAF that does UDRP disputes also has contracts with major credit card companies to provide dispute resolution services that are incorporated into the credit agreements of those major credit card companies. It's worse than the UDRP, since those credit agreements REQUIRE all disputes to be submitted to the arbitration procedure - in contrast to the UDRP, it is thus a BINDING arbitration imposed as an adhesive condition of obtaining a credit card.

http://www.consumerreports.org/main/detail.jsp?CONTENT<>cnt_id=18219&FOLDER<>folder_id=18151
First USA disclosed in court filings that of some 19,000 disputes arbitrated and resolved over three years through NAF, cardholders prevailed just 87 times.

You want to compare THAT to UDRP stats?

But, yes, if you would prefer that every domain registrant on the planet who has registered a domain with NSI be compelled to respond to lawsuits in Virginia, or if you want to have a show of hands among Canadians about who wants to go to Phoenix to hire an attorney for months of work when their GoDaddy domains are challenged, or find out how many Floridians with Enom accounts want to chill out for hours being examined in a court in the state of Washington, then I'm sure that can be arranged. In the real world, however, these people wouldn't have a fighting chance.

In contested three-member UDRP disputes, domain registrants WIN more often than they lose. That is simply not true for court proceedings.

 

[Ovicide]

The UDRP is a non-binding dispute resolution system which is built into a contract.
...
In contested three-member UDRP disputes, domain registrants WIN more often than they lose. That is simply not true for court proceedings.

I've never understood why a wealthy complainant would give up after losing a UDRP dispute.

If a big-money complainant has a weak trademark claim on a domain name held by an individual registrant, isn't the best course of action for the complainant to simply sue the registrant?

If the complainant has little chance of winning in court, wouldn't the possibility of costly litigation cause many registrants to give up without fighting?

Also John, I enjoy reading everything you post. You've clarified some very murky issues and explained things I might have never understood otherwise.

 

[jberryhill]

I've never understood why a wealthy complainant would give up after losing a UDRP dispute.

Sometimes they don't give up - e.g. strick.com. The complainant in that case didn't count on two attorneys volunteering their time to fight them in court, at significant personal cost to both of them. The defendant, from Florida, drove all of the way to Philadelphia with his family to be there. Since he was self-employed, he could afford the time off, even though an impromptu vacation was still expensive for him. If he was a run-of-the-mill domain registrant, he'd have simply lost by default.

If a big-money complainant has a weak trademark claim on a domain name held by an individual registrant, isn't the best course of action for the complainant to simply sue the registrant?

In a word, yes. Quite a few have figured this out, so it's safe enough to let that particular cat out of the bag. The UDRP was the "new toy" for trademark attorneys for a while, but you can see the annual numbers diving.

You don't see that happening with trademark litigation. After an initial ACPA-driven "spike", annual filings of trademark suits for 12 month periods ending in June of each year, look like this:

http://www.uscourts.gov/library/statisticsalreports.html

2004 3,580
2003 3,629
2002 3,407
2001 3,504
2000 4,249

UDRP filings are going down, trademark suit filings are staying flat. Does that suggest something to you?

If the complainant has little chance of winning in court, wouldn't the possibility of costly litigation cause many registrants to give up without fighting?

Most do. And that simple fact is invisible to those who rant about bad UDRP decisions. Yes, there are some major stinkers among UDRP decisions, and anyone can look them up and read them. The part of the iceberg beneath the water, however, is much larger and more dangerous.