Carl and all,
I am also in complete agreement with Carl on his comments here
to these "Rules for UDRP". But as I said in an earlier post on
this subject, I will have additional comments/suggestions in a later
post.
Good read Carl!
Carl Oppedahl wrote:
> At 10:57 PM 9/9/99 , Diane Cabell wrote:
>
> >I've put them up at http://www.mama-tech.com/udrp.html
> >
> >Ken Stubbs wrote:
> >
> >> hope these get thru your filters intact diane...
> >> they are all in a word format
>
> The proposed policy is absolutely terrible for the innocent domain name
> owner who is the subject of an attempted reverse domain name hijacking.
>
> First, it allows WIPO to hide from its decisions (as NSI does) by keeping
> them secret. "(b) Except if the Panel determines otherwise, the Provider
> shall publish the decision and the date of its implementation on a publicly
> accessible website." All decisions by WIPO should be public, so that
> people can see for themselves if WIPO is getting the right answer when it
> decides a dispute.
>
> Second, it burdens the domain name owner with the problem of raising the
> money to file a lawsuit in a mere *ten days*. The cost to file a lawsuit
> of this type is typically $10K for lead counsel and another $5K for local
> counsel, totaling $15K. This is far worse than NSI's present policy, which
> at least gave the domain name owner 37 days in which to raise the money to
> file the lawsuit. It is inequitable in the extreme to force the domain
> name owner (who may not have counsel already and who may well not have an
> extra fifteen thousand dollars cash on hand) to raise fifteen thousand
> dollars, interview counsel, select counsel, pay them a ten-thousand dollar
> advance, find local counsel, pay them a five-thousand-dollar advance, draft
> court papers, and file them, all in less than ten days. The domain name
> owner should be permitted at least the 37 days that NSI presently provides.
>
> Third, it repeats the terrible inequity presently imposed by NSI on domain
> name owners, namely that it forces the domain name owner to spend perhaps
> $100K to bring a DJ action to completion. Yet for any dispute *other* than
> a domain name dispute (e.g. a dispute relating to the *text* of a web page
> rather than the domain name) the burden of spending money to sue would be
> on the challenger, as it is in all other trademark disputes.
>
> More importantly, in a normal court action by a challenger (such a
> challenge to the text of a web page) the challenger risks Rule 11 sanctions
> if it later turns out the lawsuit lacked merit. This discourages the
> challenger with a meritless claim from asserting it. In contrast, this
> proposed policy eliminates all or nearly all risks to the challenger and
> permits it to assert a meritless claim without taking any risk. This puts
> out the "welcome mat" for challengers who have meritless claims and who
> wish to engage in reverse domain name hijacking.
>
> I speak from experience on this. I have studied many, many real-life
> situations where the challenger has gone to NSI rather than to court for
> the simple reason that the challenge would have been laughed out of court
> but will be accepted by NSI.
>
> The WIPO panel is essentially proposing to grant preliminary injunctive
> relief, just as a normal court would. But please remind yourself what you
> learned in your first year of law school, which is that no normal court
> grants preliminary injunctive relief except in a document which says the
> relief is conditional on the posting of a bond, to protect the target in
> the event that it is later determined that the relief should not have been
> granted. You want preliminary relief to shut down a factory? Then you
> should post bond equal to the profits the factory owner will lose during
> the time it is shut down.
>
> In the case of this proposed policy, the challenger should be required to
> post a bond in an amount equal to the anticipated cost to the domain name
> owner of filing and litigating a DJ action. Probably $100K is appropriate.
> Then, if the domain name owner files a DJ action and wins, the bond is
> paid over to the domain name owner. Otherwise the bond is refunded to the
> challenger.
Regards,
--
Jeffrey A. Williams
Spokesman INEGroup (Over 95k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [EMAIL PROTECTED]
Contact Number: 972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
