WIPO - bad flip-flops on the 3-letter issue

[Garry Anderson]

John> "Civil disputes are not questions of guilt or innocence, and no respondents are going to jail, either, so I don't understand the question."

Sorry John - I should have been more clear on the last sentence (which was purely rhetorical anyhow).

I would have thought you understood perfectly well.

However - the first question is correct - it is quite simple:

Why should respondent face ANY burden (let alone heavy one) - to rebut the inference that they knew or should have known of an existing trademark - when the three letters could be used for different purpose?

After all - the "burden of proof" is on the plaintiff - they have to prove respondent registered domain in bad faith against their trademark - true or false?

The three letters could be used for different purpose - so why exactly should plaintiff "face a heavy burden"?

Fact: "burden of proof" is on the plaintiff - respondent could use 3 letters for different purpose - no proof of bad faith against their trademark.

 

[jberryhill]

You have no conception of how burdens work in civil matters. Please note my use of the word "rebut" in connection with the word "burden" in the post which you do not understand.

Once the complainant has gone through:

1. IBM is a really famous and well-known trademark.
2. Person X isn't doing anything with the domain name. and
3. It is reasonable to infer intent because anyone who can use a computer likely knows about IBM.

Then in the absence of the respondent saying anything, the elements are "proven" in the legal sense - not the mathematical sense - in that there is evidence and/or reasonable inferences from the evidence that support each element.

The notion of "burden of proof" is composed of two things - a burden of production, and a burden of persuasion. Where, as in the UDRP, the "burden of proof" is on the Complainant, then all it means is that the Complainant need establish the elements of a prima facie case. Once that burden has been met, then it is most certainly up to the Respondent to put something on their side of the balance. If the Respondent says nothing, then this gap in the evidence doesn't get filled with hypotheticals about what the Respondent "could use" the domain name for.

Burdens shift during legal proceedings, depending on what has been presented.

This page includes a good introduction to the topic of burdens of production, persuasion, and proof:

http://www.kramerslaw.com/step7.htm

That is why I said that the respondent would have a heavy burden to rebut the reasonable inference that someone familiar with computers and the interent is more likely than not to be familiar with IBM or AOL. Sure, the Respondent "could" be doing something else with the letters, but the Respondent can't just sit there fat, dumb, happy, and mute, and expect the Panel to hypothesize something that is not in the record in front of them.

It is probably worth spending some time on what the word "proof" means in a legal context.

The word "proof" comes up in many folks' experience of, say, geometry. If I am given the axioms of Euclidean geometry and the definition of a right triangle, then I can proceed to a "proof" of the Pythagorean Theorem (PT). In plane geometry, I can show that the PT is true, that it must be true, and that there are no circumstances in which it can be false. That is a mathematical proof.

The real world doesn't work like geometry, so we have "standards" of proof that are all less than mathematical or absolute proof. In criminal proceedings, the standard is "proof beyond a reasonable doubt". The highest civil standard is "clear and convincing", applied to situations where there is a presumption, such as the presumption of patent validity. The normal civil standard, where there are no initial presumptions is "more likely than not" - i.e. if a proposition is shown to be true with a scintilla above 50% likely, then it is "proven".

With proof come burdens - i.e. who has the "burden" of getting to that "proof" point first. Burdens shift depending on whether someone has gotten to that point at any time during a proceeding.

We do this because the real world is muddy, complex, sometimes ambiguous, and things aren't always as they appear. Take a few examples:

Example 1. Three men, A, B, and C, go into a room. An hour later men A and C emerge. B has been shot dead, and is lying on the floor. It is known that A did not like B, and he is suspected of murder.

At trial, the state puts C on the witness stand. C says, "After we got into the room, I saw A pull out a gun and shoot B." A does not cross-examine C, and puts on no defense at all.

Has A been proven to be a murderer? Yes, he has. This is where Garry runs in and says that C could be lying, that B could have committed suicide, or that C could be the real killer. All of those things are certainly possible. However, there is no reason to believe any of those things, and thus no basis for a reasonable doubt.

The "burden" in this case so far, has shifted to A. A had better provide something to introduce at least a reason to doubt C's testimony. If he does not, then he is probably going to be convicted. The "burden of proof" was, and remains, on thestate. But the state has now discharged its burden. The burden now falls on A to rebut the state's case.

Example 2. Same facts as Example 1. However, this time, A calls a medical examiner as a witness. The medical examiner shows that a powder burn was found on the trigger finger of B, indicating that B had recently fired a gun. Now there is a reason for doubting C, and there is support in the evidence for the hypothesis that B committed suicide.

Example 3. Same facts as Example 2. However, this time the state calls a witness who testifies that B had spent the morning practicing at a pistol range, and a ballistics expert testifies that B was shot by a gun owned by A. Now, there is still the possibility that B shot himself, but the powder burn is explained, and there is further reason tending to indicate that A was the shooter.

You can keep going on like this, but the point is that real-world situations have a way of unfolding into things that are more complex than one-sentence "FACT:"s of the Garry Anderson variety. There are usually lots of facts. Some of the facts are difficult to reconcile. But despite the use of the word "proof" in the legal sense, decisions in civil disputes boil down to a question of competing probabilities based on the evidence and reasonable inferences, and not on mathematical exclusion of an infinitude of hypotheticals. During the course of this process, burdens do indeed shift from their initial posture.

 

[Garry Anderson]

Err... Most sorry John, these are LEARNED PANELLISTS - not IGNORANT CRETINS.

They are supposed to known these FACTS.

FACTS like, "the intials have inherent legitimate uses up the wazoo" - even our pal Dan knows that ;-)

That is a TRUE FACT not HYPOTHETIC - absolutely no conjecture or supposition there.

Clearly this is greater than simple "prima facie" evidence - "a fact presumed to be true unless disproved by some evidence to the contrary".

http://www.co.shelby.tn.us/county_gov/court_clerks/criminal_court/glossary.html

This is not a case were "Garry runs in and says that C could be lying"

These self-evident FACTS should not need pointing out to Panellists - therefore they require no burden on Respondent - no REBUTAL.

So let us get this right - please do not take offence (this is for clarification) - John Berryhill is saying, it is his opinion that Panellists can ignore obvious relevant FACTS - is he?

Another FACT:

If "the intials have inherent legitimate uses up the wazoo" then no act of bad faith can have taken place against the trademark holder.

Obviously, this alters had domain owner done something like deliberately INFRINGED on the trademark holder (i.e. in their goods or services).

By the way - I have labelled the one-sentence FACTS, as such, because some people have trouble distinguishing FACTS from opinion (mentioning no names Dan) ;-)

These facts are generally quite straight-forward and not very complex - I try include any privisos (like above).

P.S. Thank you very much indeed - but I did know about "burden of proof" and what "proof" means in a legal context - also the different levels of proof for criminal/civil cases. I also knew that "prima facie" includes ALL RELEVANT FACTS. Ignoring the FACTS that go against the customers (Complainant) - clearly to detriment of Respondent - seems somewhat perverse to me. How about the rest of you?

P.P.S. I hope my reading skills are still to your satisfaction and not to have hurt or insulted your delicate feelings

 

[jberryhill]

John Berryhill is saying, it is his opinion that Panellists can ignore obvious relevant FACTS - is he?

They can, and indeed some would argue they are required to, ignore anything which is not of record in the proceeding before them. If the Respondent does not make "obvious relevant facts" of record, then those facts do not exist in the record. Period.

Legal decisionmaking is about weighing competing facts and contentions (as per the device that lady in my avatar is dangling). But those facts and contentions have to be placed on the table by the parties to the dispute.

 

[Garry Anderson]

John> "If the Respondent does not make "obvious relevant facts" of record, then those facts do not exist in the record. Period."

John - you do not deny the FACT that "the intials have inherent legitimate uses up the wazoo" - because it is true - am I correct?

The FACT that "the intials have inherent legitimate uses up the wazoo" is a matter of knowledge for learned Panellists - else they are ignorant - am I correct?

Indeed, it is also FACT that David E. Sorkin (the dissenting panelist) - highlighted the domain incorporates "common three-letter combination" - is ON RECORD.

That Panellists have not used this knowledge of "obvious relevant fact" in their findings (unlike the honourable David E. Sorkin) - is clearly evidence of their corruption - am I correct?

I see you also do not deny the other FACT - that if "the intials have inherent legitimate uses up the wazoo" then no act of bad faith can have taken place against the trademark holder.

 

[namedropper]

Another FACT:

If "the intials have inherent legitimate uses up the wazoo" then no act of bad faith can have taken place against the trademark holder.

That's most definitely not a fact. This is the same old Apple versus apple argument. You can use the word apples for lots of different uses... but it's still bad faith to register a name with the intent of using apple to refer to Apple computers.

The existence of ways that a name *could* be used without violating a trademark doesn't mean that they don't have bad faith against the trademark holder. You are confusing two different points of the ICANN policy and jumping to an unsupported conclusion.

By the way - I have labelled the one-sentence FACTS, as such, because some people have trouble distinguishing FACTS from opinion (mentioning no names Dan) ;-)

You're still having problems with it I see.

 

[jberryhill]

Indeed, it is also FACT that David E. Sorkin (the dissenting panelist) - highlighted the domain incorporates "common three-letter combination" - is ON RECORD

.

Yah, it's also a FACT that my comments are directed to some general aspects of things in this thread, and that I have no opinion on that particular proceeding.

It further remains a fact that you are still afraid to tally up the non-default three-letter cases from NAF and WIPO to justify your rantings with some basis in what happens in the real world.

 

[Garry Anderson]

Garry> "If "the intials have inherent legitimate uses up the wazoo" then no act of bad faith can have taken place against the trademark holder."

Dan> "That's most definitely not a fact. This is the same old Apple versus apple argument. You can use the word apples for lots of different uses... but it's still bad faith to register a name with the intent of using apple to refer to Apple computers."

Yes Dan - I think we all know that by now

However - just EXACTLY what ACTUAL ACT OF BAD FAITH has taken place against the trademark - if your domain "intials have inherent legitimate uses up the wazoo"?

Being you have NOT INFRINGED on the trademark holder in their goods or services.

Garry> "By the way - I have labelled the one-sentence FACTS, as such, because some people have trouble distinguishing FACTS from opinion (mentioning no names Dan) ;-)"

Dan> "You're still having problems with it I see."

Dan - I hope you can see that my retaliations and jibes are in jest and meant in no bad faith ;-)

Garry> "Indeed, it is also FACT that David E. Sorkin (the dissenting panelist) - highlighted the domain incorporates "common three-letter combination" - is ON RECORD"

John> "Yah, it's also a FACT that my comments are directed to some general aspects of things in this thread, and that I have no opinion on that particular proceeding."

I am sorry that you have no opinion, of what is clearly (to my mind) an abuse by the trademark holder for the theft of a persons domain - and being aided and abetted by corrupt panellists (who hide knowledge of facts to do so).

John> "It further remains a fact that you are still afraid to tally up the non-default three-letter cases from NAF and WIPO to justify your rantings with some basis in what happens in the real world."

Is this your idea that half going to Respondent and half to Complainant, somehow shows fair system?

It matters not, the numbers or proportions.

Again - every single three-letter domain (with inherent legitimate uses up the wazoo) that is NOT being used to INFRINGE upon trademark - LIKE THIS ONE (on which you have no opinion) - is wrongly taken under a perverse and corrupt system.

Incidently - it does not matter if domain is represented or not - an actual act of bad faith has TO BE DIRECTED TOWARDS THE COMPLAINANT - and PROVEN so.

To obvious civil standard.

Please do not misrepresent me - these are not "rantings" - they are reasoned logical arguments.

These are not the ravings of some angry mad-man

Show any argument in this thread that is not supported without such reasoned logic - or where the logic is flawed.

 

[jberryhill]

These are not the ravings of some angry mad-man

A couple of years ago, I was in Washington DC with some friends, and we were wandering about looking for a place to eat. Suddenly, one of my friends pointed to a restaurant across the street and said, "Let's eat there, they have good food."

"How do you know, have you eaten there before?" I asked.

"They have a sign in the window that says, 'Good Food'" she answered.

Sure enough, that's what the sign said.

 

[Garry Anderson]

John> ""They have a sign in the window that says, 'Good Food'" she answered. Sure enough, that's what the sign said."

Misrepresentation?

Good one - you are certainly very funny John ;-)

Just exactly who is SFR.org (or any three-letter domain with inherent legitimate uses up the wazoo) presenting themselves to be?

Are you trying to say that bad faith does not have to be proven?

Is it just that the domain has to be confusingly similar?

 

[chatcher]

"They have a sign in the window that says, 'Good Food'" she answered.

Sure enough, that's what the sign said.

So how was the food?

 

[jberryhill]

Not so good.

 

[DaddyHalbucks]

Lol.

 

[Garry Anderson]

You seem to have missed my post again John

I am sure that the answer would be a matter of great interest to those concerned in legal aspects.

You have admitted that the law cannot preclude anybody else from using the same three letters for any other business.

We all know that 'officially' the Complainant has to show domain is confusingly similar to their mark - and they ALSO have to prove the bad faith of Respondent.

So, to ask you the same question as Dan - just EXACTLY what ACTUAL ACT OF BAD FAITH has taken place against the trademark - if your domain "intials have inherent legitimate uses up the wazoo" - when you have NOT INFRINGED on the trademark holder in their goods or services?

Are you now admitting that the truth is the system is corrupt; that bad faith does not have to be proven - Complainant just has to show the domain is similar?

 

[jberryhill]

You seem to have missed my post again John

No, Garry. I have a threshold level of caring about responding to your tiresome and repetitive and uninformed posts. You are not the only person here, and how I spend my free time is entirely up to me. The world does not revolve around you and your black and white view of it.

What I have said is that not all trademarks are created equal. Where a three-letter combination is particularly well-known and strongly associated in the minds of consumers with a single entity, then one has a different situation from an obscure and relatively unknown user of that combination. Whether it is reasonable to infer knowledge of the relative fame of a trademark to a domain name registrant, is going to be a function of the totality of facts and circumstances of that case.

The subject of whether basic infringement constitutes the one and only concern relating to trademarks is something that we have discussed too many times for another repeat. To save time, you start by stating that the UDRP is "corrupt" because it does not follow the law. Then, upon discussion of various aspects of the law, you shift to the law itself being "corrupt", bringing us to the same terminal point of your gripe being the world not working the way you want it to.

 

[DaddyHalbucks]

WIPO IS corrupt.

I don't believe they treat small entities fairly.

Nor do I believe their rules are sufficiently advanced to address many of the real world issues of the UDRP including: overreaching by large entities, the UDRP as an alternate form of price negotiation, the absurdity of common law trademarks, conflicts of interest by panelists, etc..

 

[Garry Anderson]

Err... you are well contradicting yourself John.

You said IBM and AOL (both "well-known and strongly associated") cannot legally preclude others from using those initials in other type businesses (we both know is true) - and now you are saying they can.

"What I have said is that not all trademarks are created equal"

Three-letter domains are not just for famous three-letter trademark holders - as we well know.

As a lawyer - you should know that similarity of three-letter domain alone does not prove bad faith - even towards famous mark.

If wrong, perhaps you will tell us how so.

John> "I have a threshold level of caring about responding to your tiresome and repetitive and uninformed posts."

Uninformed? - You little fibber - you will hurt my feelings like that

Your threshold seems to cut in - just when we are near to root of a VERY SERIOUS answer from you.

Like right now ;-)

I think we are all aware the world is not black and white.

However, most of those that can think past the BS will know it is corrupted by people who abuse their authority - with half-truths and lies - to deceive the general public.

This has been proven and well documented e.g. "UK Beef is safe" - when not known if contaminated BSE meat (vCJD) would kill population of UK - also Hutton and Butler Inquiries - changes to make intelligence harder in Dossier.

From all the evidence - DaddyHalbucks knows that WIPO is corrupt - as do many others - are we really ALL stupid?

So - take this case for example - with "inherent legitimate uses up the wazoo" - HOW EXACTLY DOES similarity of three-letter domain alone prove bad faith - or even towards famous mark?

What is the actual act of bad faith?

Let us guess - having reached near the root of a VERY SERIOUS answer - your "threshold level of caring about responding" has kicked in ;-)

 

[jberryhill]

You said IBM and AOL (both "well-known and strongly associated") cannot legally preclude others from using those initials in other type businesses (we both know is true) - and now you are saying they can.

I am saying that the outcome of any dispute depends upon the arguments and the evidence presented by the parties to that proceeding.

I am also saying that in a case dealing with three letters such as IBM and AOL, then the Respondent had better have a durn good response. If Joe Blow registers <armani.com>, doesn't do anything with it, and doesn't respond, then the only thing a panel has in front of it is that Armani is a very well-known brand of expensive clothing which may be reason enough to infer that the registration was motivated by knowledge of the mark. If, as happened in the real world, the registrant is Mr. Anand Ramnath Mani, and he does respond by showing that is indeed his name, then it is an easy win for the respondent.

http://arbiter.wipo.int/domains/decisions/html/2001/d2001-0537.html

And, yes, your statements are not only uninformed, but they are dangerous if believed and relied upon by others who do not know better. You have zero experience in actually dealing with these situations, and your contributions consist of declaring everyone to be "corrupt". Over the course of time, you have publically stated that I, Ari Goldberger, President Harry S Truman, the UN, and the US Congress, are all "corrupt", dishonest, and part of some conspiracy to deprive you of something.

The "actual act of bad faith" can never be "proven" in the sense that you use the word "proof" in ANY case. Intent is a mental act, and unlike the aliens who visit you from time to time, we do not have brain probes capable of reading thoughts. Somehow, over hundreds of years, the law has gotten along with the fact that "intent" is a critical element of all kinds of things. Intent is always inferred on the basis of all of the facts and circumstances of a particular situation.

If you actually read Prof. Sorkin's dissent, with which I agree, the reason he would have found differently is not because the domain name hypothetically has legitimate uses up the wazoo. What he says is on the question of legitimate interests is:

This assessment requires the Panel to consider circumstantial evidence of Respondent’s intentions, and we ought not place undue weight upon Respondent’s self-serving declaration. See id. n.5. Nonetheless, under the circumstances of this case, taking into consideration the nature of the disputed domain name, the plausibility and credibility of Respondent’s claimed motivation, and all of the other evidence before the Panel, I am of the view that Complainant has failed to sustain its burden of proof on this question.

The assessment of intent is a subjective exercise. The majority looked at prior cases involving this Respondent, and made inferences based on those. Prof. Sorkin put less weight on those prior cases, and more weight on other circumstances. What this suggests is that if the Respondent had been someone else, without that record of prior adverse decisions, then there would have been less support for the majority's position, and they could have gone the other way.

But that is why your question "What is the actual act of bad faith?" is not worth answering. The "actual act of bad faith" even in a case where you would agree there is intentional trademark infringement is the act of intent. Physically, it is a pattern of neuron firings in the actor's brain, and it is never anything else. The real question in determining bad faith is "What strikes the fact-finder as the most likely inference based on the circumstances?"

The basic principle can be summarized very neatly, and the complete answer to your question is simply actus non facit reum nisi mens sit rea.

You don't get that. You will likely never get that.

 

[Garry Anderson]

John - firstly, I do not want new members to think I am dangerous uninformed person who believes himself visited by aliens (according to you).

Whatever you think of me - my responses to you are always meant in the spirit of friendly rough and tumble combatant - simply trying to get to the truth.

I am not anti-authoritarian, just against the misuse of authority to lie and decieve the public.

So - as a matter of record - it is well documented (in correspondence and on archive.org) that I have been proven correct before - about the authorities and experts hiding the truth - even telling lies.

This is not just once - but on two occasions - neither case trivial.

I refer to vCJD transmitted in blood and the under reporting of errors in surgery in UK.

The authorities and experts were cowards and/or corrupt hiding these facts.

It was clearly not ignorance on their part - they obviously knew more than I did.

Moreover, it was not simply 'luck' that I was right - it was objective logic that they knew also.

This is not saying how more clever I am than anyone (fact: I most certainly am not) - just to say that logic and "stating the bleeding obvious" is my thing.

NOTE: This does not even mean that I am correct this time - but nobody has shown me wrong thus far.

I am quite certain that this case will prove true also.

However, only a cretin says they never make mistakes or denies when proven wrong.

This case - domains - it is quite straight-forward - where is any mistake:

Is some sort of label *essential* to identify trademark domains as such?

Yes - with most every word a trademark - how else are people to know which domains are trademark?

Trademarks are identified as such in the real world - why not on the Internet?

*Why would you not want trademarks identified as such?

Is some sort of master directory *essential* for people to ease finding trademark domains?

Yes - search engines simply search for everything - how else can people find them easily?

Or perhaps you think that people should google through thousands of references to find the business they want?

*Why would you not want trademarks to be easily found on a master directory?

Given fact that directory and label are *essential* to identify trademarks, you therefore obviously have to ask the question - why do US government and authorities not want them.

They have had many years to implement additional system.

Why stop at the DNS?

They do not even recognise these *essential* requirements - are they cowards (afraid to face facts), ignorant (/imbeciles) or corrupt (wanting to aiding corporate overreach) - or a mixture perhaps?

My money is on corruption.

Now - having got that out the way for new members - on to your very interesting post:

Garry> "You said IBM and AOL (both "well-known and strongly associated") cannot legally preclude others from using those initials in other type businesses (we both know is true) - and now you are saying they can."

John> "I am saying that the outcome of any dispute depends upon the arguments and the evidence presented by the parties to that proceeding."

However - proceedings are taken by learned people that deliberately ignore facts to aid and abet trademark overreach.

John> "I am also saying that in a case dealing with three letters such as IBM and AOL, then the Respondent had better have a durn good response."

If the domain is not being used illegally - and domains are not just for trademark holders - and "intials have inherent legitimate uses up the wazoo" - why do these law-abiding people have to explain anything?

Was it a boundary dispute - did they move into IBM area of business (or relevant area in each case)?

No - they did not.

However, if they did - there was already legal recourse for trademark of these "well-known and strongly associated" businesses.

Any crook that deliberately infringes on trademark deserves the full weight of the law.

"your statements are not only uninformed, but they are dangerous if believed and relied upon by others who do not know better"

My statements are all a matter of informed opinion (you know I have never claimed anything more) - unless identified as fact.

Please - I honestly welcome you to disprove any of the facts identified in this thread.

Or show how my opinion is mistaken.

"You have zero experience in actually dealing with these situations,"

Save for blowing away what I believed to be an overreaching trademarks firm of lawyers (supposed experts in field) with simple email, you are most correct.

I will always bow to your expertise in a court of law.

"Over the course of time, you have publically stated that I, Ari Goldberger, President Harry S Truman, the UN, and the US Congress, are all "corrupt", dishonest, and part of some conspiracy to deprive you of something"

And Uncle Tom Cobbly and All...

You do mix things somewhat John ;-)

To my knowledge: I have never called you, Ari, or any lawyer here that supports honest domain owners "corrupt".

Can you show a link where I have?

Indeed, I have publicly stated, several times, that I admire and respect your work.

However, I do say that anybody whom deliberately aids and abets trademark overreach is corrupt - or do you disagree?

I include those crooks that pervert trademark law to circumvent safeguards which prevent overreach - including those in UN.

Also - most of US Congress may be gullible ignoramuses rather than corrupt ;-)

We are all ignorant - of something or the other.

Yes - it is true that I think all lawyers somewhat self-serving in desire to keep some things hidden e.g. that UDRP is a corrupt system (i.e. biased for trademarks) - very sorry if this hurts your feelings.

If it helps - I admit that partial motivation comes from a self-serving interest - to stop overreaching corporate trademark crooks from stealing my domains.

"The "actual act of bad faith" can never be "proven" in the sense that you use the word "proof" in ANY case."

I think you mistaken: If I use WIPrg.uk pretending to be UN WIPO - why isn't that actual act of bad faith?

"Intent is a mental act, and unlike the aliens who visit you from time to time, we do not have brain probes capable of reading thoughts."

Gulp - when do the aliens visit - it's when I am asleep, isn't it?

Quote: "III. The domain name was registered and is being used in bad faith".

http://arbiter.wipo.int/domains/decisions/html/2004/d2004-0385.html

You are mistaken - it says, "being used" - not intended to use.

Unproven intent would allow for biase of corrupt court - as seen.

If you mean the proven* intent of to resell domain to highest bidder - that is not illegal - because, as we know, the "intials have inherent legitimate** uses up the wazoo".

* Proven with actual act placing domain for sale.

** legitimate as in LEGAL.

It was the domain owners idea to get these initials first for ANY type goods or services (or personal/free-speech use) - just as it is a businesses idea to trademark initials in a SPECIFIC type of goods or service (obviously more businesses can use exact same initials for different goods or services).

The domain owner is NOT applying to register for trademark - they are NOT the same thing - are they?

IBM - I even could apply for US trademark tomorrow - for different goods or service (fulfilling requirements) - no doubt you would offer up "Imported Bull Manure" to rubbish this idea ;-)

Why should I not get IBM.newTLD to start my new business or for whatever legal reason I want then?

"If you actually read Prof. Sorkin's dissent, with which I agree, the reason he would have found differently is not because the domain name hypothetically has legitimate uses up the wazoo. What he says is on the question of legitimate interests is:"

Glad to see you agree with the Honourable Professor

However - before we go any further - it is not "hypothetical" - a FACT: in "actual practice" the domain name can have untold number of legitimate uses - you use the word "hypothetically" to lessen or weaken Respondents position.

You use semantics to support your assertion that the Respondent has the scales going against - that require him stating this basic fact.

It is FACT not OPINION: the domain has "legitimate uses up the wazoo" - nothing "hypothetical" about it - true or false?

Prof Sorkin said, "Nonetheless, under the circumstances of this case, taking into consideration the nature of the disputed domain name, the plausibility and credibility of Respondent&#8217;s claimed motivation, and all of the other evidence before the Panel, I am of the view that Complainant has failed to sustain its burden of proof on this question."

Note: "the nature of the disputed domain name" - read "legitimate uses up the wazoo".

Note: "the plausibility and credibility of Respondent&#8217;s claimed motivation, and all of the other evidence before the Panel" - read, "it does not matter what went on before - facts are facts".

Note: "I am of the view that Complainant has failed to sustain its burden of proof on this question" - read, "trademark overreach".

"The assessment of intent is a subjective exercise. The majority looked at prior cases involving this Respondent, and made inferences based on those. Prof. Sorkin put less weight on those prior cases, and more weight on other circumstances. What this suggests is that if the Respondent had been someone else, without that record of prior adverse decisions, then there would have been less support for the majority's position, and they could have gone the other way."

In your car, you go past 200 speed cameras - you are found to be speeding on three of them.

Does this mean you speed all the time?

Can the police charge you without proof next time you go past a speed camera?

A fact is a fact: SFR "intials have inherent legitimate uses up the wazoo".

"But that is why your question "What is the actual act of bad faith?" is not worth answering. The "actual act of bad faith" even in a case where you would agree there is intentional trademark infringement is the act of intent."

I think you mislead.

Fact: With intentional trademark infringement - yes - there is intent ALSO an *actual act* of plying for trade in another&#8217;s goods or services - true or false?

"Physically, it is a pattern of neuron firings in the actor's brain, and it is never anything else. The real question in determining bad faith is "What strikes the fact-finder as the most likely inference based on the circumstances?""

Like I say, unproven intent would allow for biase of corrupt court - as seen.

"The basic principle can be summarized very neatly, and the complete answer to your question is simply actus non facit reum nisi mens sit rea."

"You don't get that. You will likely never get that."

That is absolutely brilliant - a masterpiece - I could not have put it any better.

Yes - a bit of legalese in Latin is always good for putting down us plebs (the common people of ancient Rome) ;-)

Why use English when Latin can show how clever you are

A tip for you - when using Latin, only use common phrases - or give the meaning.

A good page of LAWYERS LATIN for all us plebeians:

http://www.magistrates.leicestershire.btinternet.co.uk/lawyerslatin.htm

So - "An act does not make a person guilty without a guilty mind" or "the act itself does not constitute guilt unless with a guilty intent"

Duh - it *first and foremost* requires an actual act of unlawfulness - not simply guilty intent on its own.

To quote a very clever man, "You don't get that. You will likely never get that" ;-)

Please tell me - where am I wrong?

 

[jberryhill]

To my knowledge: I have never called you, Ari, or any lawyer here that supports honest domain owners "corrupt".

Can you show a link where I have?

This was your attack on Ari at Icannwatch:

June 5:

http://www.icannwatch.org/comments....mentsort=0&mode=thread&tid=24&pid=11785#11786
"As somebody in legal profession, why are you afraid to answer this then - can a trademark use their mark to prevent others from conducting legal commerce?"

June 11:

http://www.icannwatch.org/comments....mentsort=0&mode=thread&tid=24&pid=11786#11793
"Perhaps Ari Goldberger is like the rest of them - too afraid to answer."

June 19:

http://www.icannwatch.org/comments.pl?cid=11985&sid=1357
"Why do corrupt cowards not reply?"
"They and tight-lipped Lawyers are all pathetic cowards."

Ari tired of your game, so you called him a "corrupt coward". You can add "liar" to your curriculum vitae.

The act of registering and holding a domain name may be in bad faith, or it may be in good faith. What makes the difference is mental state, which can only be inferred from circumstances. Prior similar instances of behavior are indeed admissible as evidence of intent.

There are lots of acts, such as having sex, or shooting a person to death, which may be legal or illegal depending on the mental states of the people involved. To say that "registration and use in bad faith" is an "act" is incomplete, and thus incorrect, because it is a statement of action coupled with a mental state. If the action is established, then all that matters is the mental state.

John - firstly, I do not want new members to think I am dangerous uninformed person

I certainly do want them to know that. I thought I made that clear.