[CCWG-ACCT] Board comments on the Mission statement

[Malcolm Hutty]

On 23/11/2015 22:50, Mueller, Milton L wrote:
> Bradley, you seem intent on manufacturing a disagreement where none
> exists. Of course a UDRP finding of illegitimate domain name use must
> take into account how the name is used. But the object of policy is not
> the content of the website per se but the domain name registration;
> i.e., the UDRP doesn’t tell the web site owner to change the content of
> their site, it takes away the name.

I agree with this. There is a world of difference between the object of
the policy, and evidence used to adduce compliance with it.

Consider an example.

Suppose that there is a US corporation, Banana Inc, that makes consumer
electronics products. Suppose that there also is a British company,
Banana Ltd, that publishes music.

Banana Inc registers Banana.com.

Banana Ltd brings a UDRP case alleging infringement of its rights.

As part of its investigation of the evidence, the UDRP panel looks to
see whether www.banana.com contains evidence of the promotion of
consumer electronics goods (which it will take as evidence of a good
faith use), or a simply a sign saying "Check here soon for some juicy
tunes!" (which it will take as evidence of bad faith).

The UDRP exists to ensure that registrants do not register strings that
they are not entitled to register, not to control the use of which web
sites is put.

Does anybody seriously dispute that my fictional panel, in acting as
described, is simply trying to discover whether Banana Inc has
registered this domain in good faith as a domain it is entitled to
register, or whether instead it is registered in bad faith, to exort
someone with legitimate rights?

Does anybody seriously want to argue that the UDRP panel, by considering
that evidence, is actually attempting to regulate whether web sites may
be used to carry music?

Unless you wish to argue that the latter is a reasonable contention,
there is no basis in the text before us for supposing that it would
interfere in any way with this UDRP practice.

If either party were silly enough to bring an IRP case complaining that
the UDRP was prohibited under this clause from looking at the web site
for evidence to support a finding of good or bad faith, I am quite sure
they would be told that they were...bananas.

Malcolm.
-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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