Upcoming UDRP cases

[jberryhill]

Originally posted by Garry Anderson


Unless somebody wasn't passing themselves off as a specific Wharton - perhaps a lawyer will be able to tell us all why Wharton are not overreaching to claim this domain off the legal owner.

I doubt that any lawyer will.

Why do you doubt that? The UDRP panel has already agreed that the complainant was overreaching.

http://www.arbforum.com/domains/decisions/161274.htm

"Additionally, the Complainant has not demonstrated that it has achieved such a strong impression in the public’s mind, so that the word “WHARTON” can be only and immediately linked to the Complainant."

As pointed out earlier, the walk down Market Street to the federal court can be a pleasant one. The courthouse is located adjacent to Independence Mall, so as soon as you can smell the horse manure from the carriages there, you know you are close to the court.

 

[Garry Anderson]

I said, "Unless somebody wasn't passing themselves off as a specific Wharton - perhaps a lawyer will be able to tell us all why Wharton are not overreaching to claim this domain off the legal owner. I doubt that any lawyer will."

This was because of thread title "Upcoming UDRP cases" and what YOYOYO said today was in future tense.

Originally posted by jberryhill


Why do you doubt that? The UDRP panel has already agreed that the complainant was overreaching.

http://www.arbforum.com/domains/decisions/161274.htm

"Additionally, the Complainant has not demonstrated that it has achieved such a strong impression in the public’s mind, so that the word “WHARTON” can be only and immediately linked to the Complainant."

Sorry - I was unaware this case had gone through. The point being that the system is corrupt - many domains had gone through it like this.

Nobody in these cases, either in legal profession or the authorities, points out that this is overreach - why is that?

I would call these people corrupt for allowing it - wouldn't you?

 

[jberryhill]

"Nobody in these cases, either in legal profession or the authorities, points out that this is overreach - why is that?"

But they did say it was overreaching. They quite literally said that the complainant's claim to distinctiveness in the term "wharton" was not strong enough to win the case.

"I would call these people corrupt for allowing it - wouldn't you?"

In every legal dispute which goes to a decision, one side wins and one side loses. That does not make the legal system corrupt for spending half its time listening to people who lose.

 

[lotsofissues]

Originally posted by jberryhill
[BThey quite literally said that the complainant's claim to distinctiveness in the term "wharton" was not strong enough to win the case.
[/B]

Who agrees thats BS?

 

[Garry Anderson]

Garry> "Nobody in these cases, either in legal profession or the authorities, points out that this is overreach - why is that?"

jberryhill> But they did say it was overreaching. They quite literally said that the complainant's claim to distinctiveness in the term "wharton" was not strong enough to win the case.

Garry> "I would call these people corrupt for allowing it - wouldn't you?"

jberryhill> In every legal dispute which goes to a decision, one side wins and one side loses. That does not make the legal system corrupt for spending half its time listening to people who lose.

Thank you for your comments - but I think you miss the main point.

There is also overreaching in other cases in which domain has been taken from the lawful owner.

UDRP system allows overreaching by trademark to take peoples legal property when no unlawful activity (e.g. passing off) - so how is that not corrupt?

Also Sunrise Periods are corrupt. When giving big business with trademarks priority (over small businesses without) - why is it not a gross violation of competition law?

 

[YOYOYO]

Everyone is dependent on their own life experiences to provide themselves with information to form an opinion. What may have a great deal of meaning to one person or culture, may not have to another.

Wharton was the first, and is the most well known business school in the United States, possibly the world. If this area of information is not important to you or you are not aware of it, then you probably would wonder why the Wharton School of Business would have a claim to the name.

Personally I've been aware of the word Wharton being associated with the Wharton School of Business since I was a kid. It has probably been over the last 40 years the most quoted "Business School" on nightly network television shows in the US. That is how I came to know of the association.

This domain really is theirs for the asking.

If they were to file a case at Federal Court in Philadelphia, as I mentioned earlier, I would recommend the defendant not even attend the hearing.

If he owns this name, he for sure owns a bunch of other potential trademark violations. People could be just waiting for him to show his face, and he'd leave the city with a carload of lawsuits.

Most of the time an arbitrator will go out their way to give a name to a Complainant even when a strong case is not presented.

This is one of those cases where the opposite happened.

The website wharton.com, is one of the internet search pages that domain name holders use to earn money on. It has supposedly, search results related to the word wharton, but if you look at it closely, it's really the slight of hand, that is familiar to all of us. A link to "hotel rooms in Wharton," just a way of getting a hotel reservation sponsor on the page.

If you read the decision, the arbitrator claims it was the lack of documentation to back up their assertions that the respondent is using the website and their trademark/service mark for financial gain, as the reason the respondent won.

Apparently whoever represented Wharton did not challenge the familiar search page result showing on the respondent's website.

There are even links to MBA business programs on the site now, which apparently the arbitrator did not see, or where most likely taken off by the respondent while the case was being heard.

We all know what's on this type of page, but this arbitrator is probably the only arbitrator who ever went for it as a legitimate use for a domain name.

It does as though look, Wharton did not take the case seriously enough to make sure they submitted a strong Complaint. It had to be a first time filing for an arbitration response by whoever did the case for them

It would be interesting to find out who actually filed the Complaint for the School.

 

[LewR]

Originally posted by YOYOYO
Everyone is dependent on their own life experiences to provide themselves with information to form an opinion. What may have a great deal of meaning to one person or culture, may not have to another.<<<

VERY, VERY true. I took my driving test in Wharton, NJ and worked for a company in Wharton,NJ as well. For me, when I hear the name Wharton, I think of that historic town. No doubt, others who grew up near or in other locations with the same Wharton name, have the same recollections.

BUT - I see the fact that many people can recognize many related places/events/ideas with one word, it becomes more generic and not specific, therefore not a TM infringement or dilution.

 

[YOYOYO]

As I understand it, a word does not become classified as generic from frequency of use, but by what the word represents, specifically that a word may become generic if it represents a certain product or service.

The arbitrator claims in this case, that the respondent has a right to the domain because, not that it is generic, but that it is specific in it's other meanings.

Fernando Triana gives an interesting explanation of his decision, but in some matters, appears to be suspiciously naive. You almost begin to wonder if this is a case of someone from Europe getting a chance to give a decision against an American institution, and taking it.

If it is not, and he is sincere in what he says, it is then very comical to see how much he bought into the search engine page that sits on the website as legitimate content.

The first entry is for FreeLotteriesOnline.com.

I didn't know that FreeLotteriesOnline.com was a service provided by the city of Wharton, or by Edith Wharton for that matter.

Unless the lady has been reincarnated as a Blackjack dealer.

He says here,

"The Panel visited the Respondent’s website on July 14, 2003, and found out that it offers a number of options to the visitors, including a hotel locator in Wharton,"

A "hotel locator in Wharton," well.... There is a link to http://hotellocators.com, where coincidentally you can search for hotel rooms in any city of the world, even in Wharton if you want to.

There is not a link on the page that would tell you anything about any of the cities of Wharton in the U.S.

Right now the biggest areas of content on the site relate to casinos and lotteries, finding hotel rooms and information about finding a job for people who have, a Masters Degree in Business.

Hmmm....now what was that again, The Wharton School of Business offers to people.

I believe, it is a Masters Degree in Business....!!

I'll be darn....!!!

 

[jberryhill]

"specifically that a word may become generic if it represents a certain product or service"

Yes. It seems kind of odd that the word "generic" turns up in the decision at all. A geographic term or a reference to a personal name is certainly available for use to refer to that location or person, but that has nothing at all to do with the meaning of the word "generic" in the trademark law sense of the term.

You seem to get that. I don't know why it continues to be a point of wide misunderstanding.

Like a generic word, a geographic term is usually not capable of being distinctive of a source of goods or services. I say not "usually" since the geographic term "Amazon" is certainly distinctive of a particular online bookstore. There are also geographic terms which are not descriptive of origin, but have come to be distinctive of particular goods and services. Kraft "Philadelphia" brand cream cheese.... Louisville Slugger baseball bats... "New York, New York" casino (which, not descriptively, is located in Nevada).

But "Wharton" is not "generic" for anything.