[gnso-rpm-wg] [Ext] Re: REMINDER re: Nominations for RPM Working Group Co-Chair

George Kirikos icann at leap.com
Fri Apr 27 11:49:49 UTC 2018


Greg:

A "consent order" is still an order (just like a "red car" is still a
car), and a "consent judgment" is still a judgment even if it's the
result of a settlement. Most cases are settled.  When a TM holder wins
a UDRP complaint, but then is challenged in court, the outcome of that
challenge is certainly of interest. Take a look at the outcomes here:

1. Soundstop.com -- Domain Asset Holdings (domain owner) kept the domain

2. AustinPain.com -- "Judgment and Permanent Injunction" -- domain
owner keeps the domain, and also gets $25,000 - "the NAF Order in the
UDRP proceeding is hereby set aside"

3. SDT.com -- Telepathy (domain owner) keeps the domain, and gets
$50,000 paid to it by the initiator of the UDRP; "Consent Judgment and
Permanent Injunction"; "Accordingly, it is hereby Ordered and
Adjudged"

4. Moobitalk.com - you concede

Folks would be misled by simply having the UDRP decisions appear at
NAF/WIPO, making it seems as if they're the final outcome, the final
word, when they're not. By knowing these cases exist, others can go to
the actual pleadings, and learn something (in particular, that the
UDRP decisions which were rendered are likely highly deficient, given
the judicial outcomes).

Furthermore, WIPO has *already* listed a case, the one for LawSociety.com:

S.H., Inc. v. The Law Society, Case No. CV10-0248MJP, United States
District Court for the Western District of Washington, July 19, 2010

http://www.wipo.int/export/sites/www/amc/en/docs/courtorderd2009-1520.pdf

which was *also* the result of a settlement (a consent order) [boom
goes the dynamite -- I really need sound effects for these emails!].
That precedent further reinforces that everything you said is wrong
--- to be consistent with their long-established precedent, they
should be adding all the cases.

Nice try, though. :-)

Q.E.D.

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


On Fri, Apr 27, 2018 at 1:04 AM, Greg Shatan <gregshatanipc at gmail.com> wrote:
> Soundstop, Austin Pain and SDT are all settlements.  The WIPO page is
> entitled "Select UDRP-related Court Cases," which they specify as "orders
> and decisions." As settlements, they really are neither court orders or
> decisions.  The court just rubber-stamped the private agreement of the
> parties.  There's nothing wrong with that, but there's no judicial value in
> these actions.  They provide nothing a third party could rely on, set no
> precedent, apply no law and make no law.
>
> These are not "successful challenges" in the sense that a court actually
> considered the merits of the case and rendered a decision.  They may be
> favorable settlements to the respondents, but they do not represent success
> in court in the way that a "case" does.  (In law school, when students are
> "reading cases" in law school, they are reading decisions; when a lawyer
> says she has a "case on this point," she is referring to a decision.) A s
> such I wouldn't consider these "cases" at all for this purpose.
>
> Also none of these are relevant to "the other side of the coin, abuse of the
> process, reverse domain name hijacking, and the court cases that are
> required to achieve justice."  Hopefully, nobody who read this thread
> actually thought that these (non)cases represented any of those things, or
> thought that WIPO was biased and engaging in a cover-up by "failing" to post
> these settlements.  (This seemed to be the undercurrent of the argument, but
> perhaps I'm reading too much into it.)
>
> In other words, WIPO did the right thing with regard to Soundstop, Austin
> Pain and SDT.
>
> Moobitalk is different -- it is an actual court decision (indeed, two court
> decisions), which I think would be of some interest to those looking for
> court decisions reflecting the outcome of judicial challenges to UDRP cases.
> In this instance, I would join George in requesting (respectfully, in my
> case) that WIPO post the decisions in this case on the "Select UDRP-related
> Court Cases" page.
>
> Again I should note that Moobitalk doesn't appear to demonstrate "the other
> side of the coin, abuse of the process, reverse domain name hijacking, and
> the court cases that are required to achieve justice," and also note that
> none of this is relevant to Brian's fitness or appropriateness to serve as
> Co-Chair of this WG.  For that purpose, this is a "frolic and detour."
>
> Greg
>
>
>
> On Tue, Apr 24, 2018 at 3:30 PM, claudio di gangi <ipcdigangi at gmail.com>
> wrote:
>>
>> George, all,
>>
>> Personally, I don't believe WIPO is doing anything wrong by not publishing
>> your specific list of post-UDRP cases, which is not a requirement for
>> Providers. From my perspective, it looks like they have posted some of these
>> cases as a nice gesture to the community.
>>
>> The webpage on which these cases are published clearly states these are
>> "select" cases and there is no intent to create a comprehensive, updated
>> running list of all post-UDPR actions.
>>
>> Moreover, in taking a quick glance at some of the cases you highlighted:
>>
>> <Soundstop.com> - the court case settled; it doesn't appear the court
>> issued a holding that is generally applicable to other UDRP proceedings.
>>
>> <sdt.com> - it looks like the UDRP panel terminated the proceeding to let
>> the court case run its course.
>>
>> <Moobitalk.com> -   the decision of the appeals court was based on a legal
>> principle (territoriality) that is not a required element under the UDRP.
>> This seems to be a relatively unique case and publishing this decision may
>> confuse some readers in terms of the general applicability of UDRP
>> jurisprudence.
>>
>> ---
>>
>> In terms of Brian's nomination, I am very grateful that he is willing to
>> serve and dedicate the time needed to take on this role.  As mentioned by
>> Zak and other's, I believe he is preeminently qualified and has the natural
>> leadership skills that will greatly benefit our team.
>>
>> Hope this helps.
>>
>> Best regards,
>> Claudio
>>
>>
>>
>> On Tue, Apr 24, 2018 at 12:47 PM, George Kirikos <icann at leap.com> wrote:
>>>
>>> With regards to Brian Beckham of WIPO being one of the co-chairs, I'm
>>> relatively indifferent, as long as the co-chairs comply with the
>>> working group guidelines which place constraints on their behaviour
>>> (i.e. neutrality, not pushing their own agenda, etc.). It's meant to
>>> be an administrative/clerical task, essentially.
>>>
>>> I think Brian would go a long way towards demonstrating his commitment
>>> towards that required neutrality if he would get WIPO to update their
>>> "Court Challenged Cases" page at:
>>>
>>> http://www.wipo.int/amc/en/domains/challenged/
>>>
>>> with cases that have been **repeatedly** brought to their attention in
>>> the past, including:
>>>
>>> 1. Soundstop.com --
>>>
>>> http://domainnamewire.com/2016/07/21/mike-mann-overturns-udrp-decision-court/
>>> https://domainnamewire.com/wp-content/soundstop-1.pdf
>>>
>>> 2. AustinPain.com --
>>>
>>> http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.uscourts.cod.147273.23.0.pdf
>>>
>>> 3. SDT.com --
>>>
>>> http://domainnamewire.com/2015/07/22/50000-penalty-for-filing-a-frivolous-udrp/
>>> https://domainnamewire.com/wp-content/SDT-settlement1.pdf
>>>
>>> 4. Moobitalk.com --
>>>
>>> http://www.lexology.com/library/detail.aspx?g=5899d5f9-3bbc-416e-a9a5-7233a147b62c
>>>
>>> https://www.legalis.net/jurisprudences/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/
>>> (actual decision)
>>>
>>> It looks bad on WIPO's part that all of these successful challenges
>>> are not being reflected on that page. WIPO is quick to assert "record
>>> cybersquatting" exists, yet they fail to mention the other side of the
>>> coin, abuse of the process, reverse domain name hijacking, and the
>>> court cases that are required to achieve justice. If Brian would get
>>> that page updated before an election, that would be wonderful.
>>>
>>> Sincerely,
>>>
>>> George Kirikos
>>> 416-588-0269
>>> http://www.leap.com/
>>> _______________________________________________
>>> gnso-rpm-wg mailing list
>>> gnso-rpm-wg at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>
>>
>>
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>
>


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