Re: [ICANN-EU] Re: WIPO

[Marc Schneiders <marc@venster.nl>]

On Tue, 19 Sep 2000, Griffini Giorgio wrote:

> 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.

I subscribe to this. Some IP/TM protection is not bad. It is
inevitable. The UDRP is not bad to the letter of the rules. The way they
are applied, or rather violated by WIPO (and other centers, though not to
the same extent), is the problem.

There are some good decisions recently though, fair ones. I saw one today,
from WIPO moreover (others were by eResolutions, which is a lot fairer
generally): metagen.com. Maybe the fact that this was by a three member
panel helped. One of the panelists was on this list recently: Professor
Thomas Hoeren. He wrote: "Thank you all for your very remarkable
discussions on this forum." No, I am *not* flattering myself, thinking
that ...



-- 

*-------------------------------------------* 
 Marc Schneiders (the rest is in the header)
*-------------------------------------------*