Two new UDRP decisions

[GeorgeK]

Another loss by Alberta Hotrods, over michaelcrichton.com:

http://arbiter.wipo.int/domains/decisions/html/2002/d2002-0872.html

What's interesting is that they didn't respond. They've put up strong defences in the past. We'll know in a few days if they intend to appeal it...

The second case involves "vanguad.com" (typo of Vanguard) What's most interesting isn't the domain dispute, but who the respondent is -- John Zuccarini! And he actually responded, unlike Alberta Hotrods...

http://arbiter.wipo.int/domains/decisions/html/2002/d2002-0834.html

Aren't US authorities still looking for Zuccarini? Another interesting point is "The use of the subject domain name to link to a pornographic site contravenes German law, adherence to which is a requirement of the registration agreement." No German registrars allow adult domains?

 

[pljones]

It is interesting that Zuccarini took a break from his lunch of conch fritters and Red Stripe in the Bahamas to hammer out a response. In fact, Zuccarini makes some good arguments. However, the result is due to his fame in previous cases as a typosquatter.

What's most interesting is that there was a dissent in the case, but it isn't published at the end of the decision. At least one of the panelists felt that Zuccarini didn't have the complainant in mind when he registered the domain name.

 

[beatz]

Originally posted by GeorgeK
"The use of the subject domain name to link to a pornographic site contravenes German law, adherence to which is a requirement of the registration agreement."

Well,

i am german, i am living in germany and i do own quite a number of german porn names.
I can tell you there is NO law like that, except maybe childpornography which is selfexplaining, but other than that - no.
This is a perfect example why the whole UDRP / Wipo panel setup is crap - because they behave like judges, they think they know law, everybody takes their decisions as if it was REAL law when in fact it isn't and thus strange decisions occur.
Again - there is no such a law in germany!

 

[pljones]

Well Beatz, when you register in .com/.net/.org/.biz/.info and a few other TLDs, you are subject to the UDRP. Like it or not, the policy applies to these domain name registrations. If you don't want to be subject to the UDRP, stick to .de.

 

[NameBox]

Interesting to hypothesize on the panels decision if:

1. An infamous squatter wasn't involved.
2. vanguad.com didn't resolve to a PORN site.

Like waving a red flag in front of a bull ....

 

[beatz]

Originally posted by pljones
Well Beatz, when you register in .com/.net/.org/.biz/.info and a few other TLDs, you are subject to the UDRP. Like it or not, the policy applies to these domain name registrations. If you don't want to be subject to the UDRP, stick to .de.

Well the respective expression was "The use of the subject domain name to link to a pornographic site contravenes German law.."
Doesn't have anything to do with UDRP - question is if german law forbids to link to porn sites or not.Well, it doesn't.
Which again shows how easily people mix up UDRP with law.

 

[jberryhill]

The name was registered through joker.com.

Part of their registration agreement states:

-----
i. The customer must avoid any measures which violate prevailing laws of the Federal Republic of Germany. Specifically the customer must ensure that the services or domain forming the subject of the agreement

do not provide access to pornographic or other offensive content of left or right wing extremist political nature or which incites racial hatred, glorifies or trivialises violence or violates third-party rights of privacy;

presents content covered by the Act for the Protection of Youth in Public Places or obviously likely to disturb or endanger the morals of children or young persons only in a way which limits access in Germany to legal adults;
------------

Like it or not, that's Joker's agreement. Violations of the registration agreement are fair game for claims against "legitimate interest" or supporting "bad faith" for UDRP purposes.

Moral: Don't register with joker.com if you are going to be a porn affiliate.

 

[beatz]

The panels point was not Jokers agreement but "The use of the subject domain name to link to a pornographic site contravenes German law..".
Again: There is no german law like that.
Would the panel have said it contavenes to Jokers agreement, that would have been a different story.

 

[jberryhill]

If you want a "different story" then quote the whole sentence you are referring to. The full sentence you are quoting says:

"The use of the subject domain name to link to a pornographic site contravenes German law, adherence to which is a requirement of the registration agreement."

The Panel's point was precisely that it was a violation of Joker's agreement, and the "Act for the Protection of Youth in Public Places" which is presumably a German law, since it is specifically mentioned in Joker's agreement.

I dunno, maybe there is no "Act for the Protection of Youth in Public Places" in Germany. I'm not a German lawyer, and you are
a German living in Germany.

But the panel was referring specifically to the Joker agreement, and there are obviously people suffering under a delusion that there is indeed a Gesetz zum Schutze der Jugend in der Öffentlichkeit.

http://www.iuscomp.org/gla/statutes/JOeSchG.htm

Now, those are only excerpts, and they are translated into English, but it sure *looks* like a German law relating to making porn available to minors on an unrestricted basis. It would surely fool me into thinking there was one, at least.

 

[beatz]

It's as simple as that:
The "Gesetz zum Schutze der Jugend in der Öffentlichkeit" doesn't have to do anything with porn on the internet.As far as internet goes, the only things that are restricted are child porn, nazi and other racist material.
As for the panel - if you read the decision carefully the panel didn't DIRECTLY refer to Jokers agreement but to german law and THEN said german law being a part of Jokers agreement and draw conclusions then.Again, the point is, what if german law has NOT been violated - i guess then that would mean they could NOT use that as a violation of a part of Jokers agreement.
Anyway - i would challenge any decision made by the panel in front of a REAL court; it's not like WIPO and such are anything more than panelists rather than a court.

 

[jberryhill]

"The "Gesetz zum Schutze der Jugend in der Öffentlichkeit" doesn't have to do anything with porn on the internet."

Okay, I believe you. *I* am not the person who put it in Joker's registration agreement. I have no idea why Joker put it in their registration agreement. Obviously someone at Joker thinks it is relevant to the internet, but I am not qualified to judge. The Joker agreement refers to material "covered under" the Act, and requires access controls for such material. Go argue that with Joker.

There are two places where the text of the decision mentions German law. Both of those sentences are in the Complainant's Contentions, not in the panel's analysis. For completeness, the other sentence, in addition to the one quoted already is:

"The registration agreement for the subject domain name requires that it not resolve to pornographic content, in violation of German law."

Now, what the *panel* said was this:

"It cannot be said that a Respondent does not have a legitimate interest in a domain name merely because it resolves to a pornographic website, but in this case the resolution appears to violate the Respondent’s registration agreement"

In other words, they found the Complainant's argument to be persuasive on that point - i.e. whether there was a violation of the registration agreement.

But take a look at Joker's agreement again, where I have it quoted above. Joker's agreement says it is okay to present material *covered by the act* - i.e. pictures and movies - only if such material is access controlled to legal adults.

So the point is not that the Act was violated. The point was that material covered under the Act was not access controlled as per the terms of the Joker registration agreement. You are probably spot on correct that the *complainant* was wrong about there being a violation of German law. There probably was no violation of German law. But the Joker agreement's reference to that particular law doesn't care whether or not you *violate* the law. Rather, it cares whether you control access to material which is *covered* under that law.

And if you look at the Panel's analysis, rather than the parties contentions, the *Panel* says that there appeared to be a violation of the registration agreement. The *Panel* did not say there was a violation of the law. At the point where the Panel comments on this issue in the analysis, they only refer to the registration agreement.

So, absolutely, one can be in perfect compliance with the law, but not in compliance with Joker's registration agreement.

I'll agree it is sloppy drafting by the UDRP panelists, who are paid only slightly more than dnforum commentators. But you can't take stuff out of the "Parties Contentions" section of the opinion and blame the panel for what is said there. The Panel's opinion doesn't start until you get to section 6. "Discussion and Analysis".

 

[beatz]

Agreed.
I might have misread the law part as coming from the panel whereas it was the complainants statement.
Question is - especially as Joker seems to be a german registrar and thus having to comply with german law- if the part of their agreement that forbids certain contents is legally binding at all.
As they're only the registrar, not the webspace provider.
Also, does this part of TOS apply to german law or US law ?
I'm NOT talking about the part that refers to german law but the part that refers to which content is allowed and which not.
Seems the more international the more tricky it gets.

 

[jberryhill]

"Agreed.
I might have misread the law part as coming from the panel whereas it was the complainants statement."

Oh, it's confusingly written, no doubt about that.

It's important to understand the perspective of a UDRP panelist. Imagine that you normally charge anywhere from $300 to $500 dollars per hour for your services.

Now imagine that someone is going to pay you $750 to read a UDRP complaint, read a UDRP response, listen to lots of bickering about whether you should read additional materials, and then write a UDRP decision.

How much attention to detail are you going to pay to some of the finer factual points after you've already made up your mind what the decision should be?

But back on the trail here....

"Question is - especially as Joker seems to be a german registrar and thus having to comply with german law- if the part of their agreement that forbids certain contents is legally binding at all."

I'm not a German lawyer, and I can't say that strongly enough. In many legal systems, the right to contract is quite broad. Since you are free to enter into, or refrain from, a contract, then your voluntary assent to be bound to a contract deserves respect. In the US, for a contract not to be upheld, it has to be really, really awful, and not just "unfair".

I don't see any reason why a registrar couldn't require, as a condition of a domain registration, that your last name begin with the letter "L", or that you can dance the Macarena, or that your favorite color has to be purple. If you don't like those terms, then you are free to register somewhere else.

The sticky situations occur when there are no alternatives, or where the contractual provisions violate limits beyond which a society has deemed one cannot go - i.e. contracts for slavery, or contracts which discriminate on the basis of protected classifications of people.

My best guess as to why Joker would put something like that in their contract is that they want to be able to point to it, in the event the German government attempted to blame Joker as "enabling" or otherwise being complicit in the provision of materials that *might* violate some German law. In that situation, Joker has the ability to say, "But look here, we don't allow people to do that."

That part of the TOS will be applied whenever Joker believes that it might get into trouble. That's when it will be applied.

 

[beatz]

Yes and no i think.
Yes because as you said nobody is forced to register at a certain registrar.
No because in opposite to US laws contracts here are easily challengeable if it's about TOS - if for certain paragraphs there is no legal reason or if it's against "good manners" or if it's indeed just "unfair" - it basically means it's not worth the paper it's written on.
Or to put it another way: Stuff that isn't LEGALLY binding isn't legally binding - no matter if you signed it or not.
But the more interesting question for me is if just in general a german registrar ( at least for .com/net/org ) like Joker.com has to comply with german law or US law or both?
As long as it's about CNO names i mean.
And not to mix that up with WIPO/UDRP - as they're not a court but just a panel.
Also, i'd think it should be pretty easy for me being german to challenge a Wipo decision in front of a real court - after all, it's an US institution, not a german one so question is would i have to acknowledge WIPO at all as they're not a part of german law ?

 

[jberryhill]

Okay, you really want to make your head spin?

What would happen if I registered the following domain name:

The-holocaust-is-a-lie.com

...with Joker (a German registrar)?

...with Verisign (a US registrar)?

...with Domainthenet.com (an Israeli registrar)?

...with shop4domain.com (a Kuwaiti registrar)?

I'm not sure I understand your comments about German contract law, though...

I am not legally required to wash your car, and you are not legally required to walk my dog.

But if you and I write a contract under which I agree to wash your car, and you agree to walk my dog, then we both have a legally justified expectation that the other party will perform the acts specified in the contract.

 

[beatz]

First part indeed a head spin question - waiting for you to tell me what would happen
As for german contract law, what i basically mean is that for instance if i would sign a contract with a registrar that requires me to wear womens clothes on sundays or that says i can only link my domain to sites/webspace that don't have expicit/adult content on it then although i would have signed the contract i would NOT be legally bound to the respective paragraphs and thus could indeed link to porn material.
Just because german law says it's not legal to put in TOS paragraphs like that and even if these are part of the contract they just don't count - legally speaking, even if i have signed the contract in full knowledge of these "requirements".

 

[Madhukar]

Actually, you'd have to have a contract to wash his car IN RETURN for him walking your dog. Contracts have to have some sort of "consideration" -- if there's no consideration the contract is invalid. A document specifying simply that you would wash his car and he would walk your dog might be considered to be a document enshrining your plans to mutually "gift" each other, but wouldn't be a contract.

Maddie

 

[jberryhill]

You know how in every class in law school there was someone who just couldn't resist playing "stump the professor"...

So, what if I wanted him to walk the dog first?

How would you draft the contract to be independent of the order of performance - i.e. neither party is bound to perform unless the other party performs first?

Whether the document reflects an intention of the parties to be legally bound to the mutual covenants therein is certainly going to depend on the specific language, you are right.

And now I certainly know who I would like to walk behind and clean up after the dog.