[gnso-rpm-wg] Correction to UDRP data on 2-June TM Claims Sub-Team call

[George Kirikos]

Hi folks,

On Fri, Jun 9, 2017 at 9:25 AM, Nahitchevansky, Georges
<ghn at kilpatricktownsend.com> wrote:

(changing the order of paragraphs)

> At this point, I think we have both staked out our positions, so for the sake of the group I do not think further communications on this are necessary. You have made your position clear. Let's just say that we agree to disagree and move on.

It's kind of funny you would ask me questions, perpetuate the
conversation with new (disputed) points, and "suggest" that "further
communications" are not necessary.

After listening to yesterday's Comey hearing, I'm wondering if this is
akin to Comey's statement that "I hope" was to be interpreted as a
command. Rest assured, I would not interpret your suggestion as a
command (you could have moved the conversation privately, which at
first you did, but then decided to move the discussion back to the
public list, by resending the response later to the list, afterwards).

> Again you are trying to sweep a major problem under the rug. First, let me ask you this: Have you ever litigated in court and in particular litigated a case to a full resolution. If you have, the cost of litigating is huge. So, in your world, I register a domain name for $35 US and you then spend hundreds of thousand dollars pursuing me in court. Even if I default and don't oppose your court action, you will end up spending thousands of dollars in the matter. Oh, and by the way if you have to sue in me in certain jurisdictions, we might be litigating together for many years. The court system is certainly one tool to use to resolve these problems, but the UDRP and URS are way faster and more cost effective.

Yes, that's the way the court system works (and yes, I've litigated
cases to a full resolution, one of which is even listed on WIPO's
site). The same applies to copyright cases, car accidents, libel,
contract disputes, etc. Again, what is so "special" about domain
names? If someone steals a $3 loaf of bread, that also can go through
the court system. There are also small claims courts, with streamlined
procedures.

> Second, you keep talking about the harm as a hill of beans‎. If you spend any time reviewing the mounds of literature and studies done on cybersquatting, fraud, brand hijacking, counterfeiting, phishing etc perhaps you might realize that what you are arguing is not supportable. The harm is real, is growing and ultimately has an impact on consumers. Your attempt to say that because there are only x number of proceedings in relation to Y number of domain names registered shows this is not a problem is a red herring at best. My car example was meant to illustrate that. If there are hundreds of billions of car rides a year and the total number of accidents due to drunk driving or texting, for example, are less than 0.1% of all car rides, that doesn't mean there isn't a problem.

Those same harms, even larger ones, are handled in the court system,
without a "CADRP" (Car Accident DRP), etc.

.BRAND TLD holder Barclays plead guilty to foreign currency manipulation:

http://www.circleid.com/posts/20150520_should_barclays_lose_the_barclays_top_level_domain/text/javascript/

with a $2.4 billion fine. Should there be a DRP for that type of
crime, where victims could have the option of obtaining relief via a
parallel system of internet-delivered justice, instead of the courts?

Here's a proposal that I hope all TM lawyers will answer on behalf of
their clients:

---- start of proposal --------
Many highly questionable Benelux and Pakistani TMs have been used in
UDRPs, TMCH, etc. The standard "refrain" from TM lawyers has been
"they are to be assumed to be valid, and if you have a problem,
challenge those in court or with the national authorities".

Since some TM lawyers seem to believe in a "parallel system" of
justice that should apply to the internet, instead of allowing the
"everyday laws" to apply, what if there was a "TMDRP", whereby anyone
could challenge, via a mandatory "procedure" modeled on the UDRP, a
registered TM, and its applicability on the internet? This would, by
Georges' reasoning, save lots of money for all parties involved, and
have a public interest benefit of cleaning up many of these dubious,
"deadwood" or even fraudulent TM registrations which have been used to
abuse the legitimate rights of domain name registrants and others.
Evidence could include proof of sales, audited financial statements,
etc.

How about it? If just 0.1% of registered TMs are being "abused", then
that's certainly a "problem" that should be addressed?
------ end of proposal --------------

> Lastly, your parallel system of justice argument simply does not hold up. If you want to go down that road, then look at all the parallel systems that exist in various areas such as housing, health care, insurance, securities trading, wealth management, ‎trade disputes, car accidents etc. These systems all exist, for example, to deal with specific problems, to streamline processes and provide efficient resolution of specific matters, and to not clog up the courts with thousands upon thousands of additional cases.

See above. Let's have a TMDRP, to have a mandatory procedure to
challenge registered TMs, decided by an internet-based "panel", that
is cheaper, streamlined, and more expeditious than those afforded by
national authorities and the courts. What are the reasons for/against
such a TMDRP, and how do those reasons not also apply to the
UDRP/URS/TMCH and any other "special program" that's justified "just
because it's the internet"?

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/