Re: [ICANN-EU] Re: WIPO

["Griffini Giorgio" <grunz@tin.it>]

Marc Wrote:
> [...]
> > For 2nd level disputes under gTLDs I think the UDRP is useful as an
> > effective tool to solve disputes easier and less expensive than using
> > law suits.
> 
> In theory: yes. How it works now: no. I have discussed my view and my
> reasons before ad nauseam here. If you are interested, have a look in the
> archive, please. Or follow some links from http://bodacious-tatas.org.
> 
This is the main (and IMHO only) problem with UDRP.  If anyone takes a 
look to WIPO first process final report will see by him/herself that the UDRP 
is based (and take its strengh and validity) on defining 'abusive registration' in 
quite reasonable manner for both trademark and non-trademark owner.
To the UDRP proposed into this final report ICANN added a little more 
explanation in order to allow the defendant to prove his/her 'good-faith'.
In general the 'bad-faith' is a concept that can be applied to any topic, but 
instead the UDRP is being used to assert 'more' or 'less' legitimacy of a 
party in holding a domain name. 
The problem is exactly here and we should build up a strong voice toward 
ICANN which in turn should direct it to WIPO arbitration center in order they 
avoid such improper misuse and kind of judgement.
Also, on WIPO side, a second process has been started on issues that 
regards things that may anyway be covered as well with the current UDRP if 
it is judged by the 'bad-faith' rule. Concern has been raised due to this 
uncertainity of judgment which is more even evident on the famous cases we 
all know about (barcelona.com bodacious-tata.com ...)
In summary, if we agree that 'bad-faith' rule is a good start, I think we should 
put our emphasis on having UDRP disputes resolved _only_ on 'bad-faith' rule 
rather than other untold or unspecified (maybe IP biased) rules.
I sent this kind of comment on WIPO second process forum on RFC1 but I 
realized I sent it 23 minutes later than deadline (*grrr*). Since WIPO tells 
that it will make public any comment (and this should apply also to 
comments received after the deadline) if I will not see it published or almost 
minimally considered  I will insist at any level on WIPO. (RFC2,Regional 
consultation and so on).
Independently on what side are you (you=anyone) on, whether interested on 
having IP protection or not, I think that having a 'definitive way' to have the 
UDRP interpreted is the absolute minimum we should all pretend for 
considering the UDRP as a 'tool' rather than a 'obstacle'. 
Certainity will help both sides.

Best regards
Giorgio Griffini