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

Fri Apr 27 15:15:56 UTC 2018

George K.

Of the settlements referenced that you inflate as "judicial outcomes" which one do you believe states the basis upon which justice was served? Which settlement shows judicial analysis of case precedent applied to facts, even to the level of a summary proceeding with findings like the UDRP? Which one states that one party won and the other lost? Unless you were a party to the settlement, the only thing the settlement proves is that litigation ended, for any of the myriad reasons Georges N.  and Greg listed, including nuisance value, given the uncertainty of outcome in any proceeding - including UDRP, and the certainty of expense, especially in federal court.

Best regards,
Scott

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-----Original Message-----
From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> On Behalf Of Nahitchevansky, Georges
Sent: Friday, April 27, 2018 8:53 AM
To: George Kirikos <icann at leap.com>; Greg Shatan <gregshatanipc at gmail.com>
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] [Ext] Re: REMINDER re: Nominations for RPM Working Group Co-Chair

George K

With all due respect, the fact that a party settles a case does not mean that their case was deficient, that the UDRP decision was faulty or deficient, or that the appealing respondent or complainant had a meritorious case.  Any attorney will tell you that parties settle cases for any number of reasons.  These often include business decisions based on the cost, time and effort to be expended in a litigation.  The mere fact that a brand owner paid some money to the losing Respondent means nothing about the merits.  It may just mean that instead of spending gobs of money on a litigation to get a judgment against a party to only get the domain name (and never be able to collect monetary damages, or possible attorneys fees, because the defendant is shady or essentially judgment proof), that brand owner simply decides as a business decision to pay a significantly lower amount to get the matter resolved quickly.  Put another way, there are many cases that involve appeals that are n  o more t  han hold up suits that get resolved because the company facing the suit does not want to spend the time and money on a case that they know will cost them way more than simply settling.  Similarly, respondents who lose and get into a litigation sometimes settle because they know they are going to face significant damages, the possible seizing of their portfolio of domain name to satisfy a judgment and the time and cost of litigating (in other words, they appeal a UDRP and then face a party who will go the distance to prove their rights).  That is not say that there aren't meritorious cases, but to read something into a settlement is more or less a pointless exercise and involves speculation as to what motivated the parties to settle.  Greg's point as to adjudicated orders and decisions is correct.  They have way more probative value than a settlement

Georges Nahitchevansky
Kilpatrick Townsend & Stockton LLP
The Grace Building | 1114 Avenue of the Americas | New York, NY  10036-7703 office 212 775 8720 | fax 212 775 8820 ghn at kilpatricktownsend.com | https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.kilpatricktownsend.com&c=E,1,rRq9TKQK6kPNdPQGWK6YrBSpdTn20mE_28VAGKjQyTa9SVmX466jIapr60xWkn3I-JKUvbr7KjIonTmzP3RVCM2eu0-Zi4-tMWlDx3-xsffTmnhdCj0exeuI&typo=1

-----Original Message-----
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of George Kirikos
Sent: Friday, April 27, 2018 7:50 AM
To: Greg Shatan <gregshatanipc at gmail.com>
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] [Ext] Re: REMINDER re: Nominations for RPM Working Group Co-Chair

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. https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fSoundstop.com&c=E,1,1UOIpaLoOcwYcULVS1KDFtuBKeYuclqgLN0XYuFMQfIBcVwysa9cZK4e39z1ulDiTFODmVlRskJlhU9bYqdTDfa7jp9wSZWOq0g6z0bLWqU933kONIQa9eiqO5c,&typo=1 -- Domain Asset Holdings (domain owner) kept the domain

2. https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fAustinPain.com&c=E,1,ScWPIRoJqQdbYD-udNqlxB6ZkNJ2WcdBcuz5IrZml7NpE8M2q-S9L4YzYS9H-65MyVr21befjPE-xGExgDIF3nOY9B81KKja5zIrkP1SbzwToIJBwA,,&typo=1 -- "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. https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fSDT.com&c=E,1,n2WgoTPTcdx8WFte8HkmNulLeV8M1cMLSA171AM6a9ONyYX2F2PlvzTCcHXIViM2MzGCQyco_6im5noaikJi1WSOAjol-v8mD7NHTPehZW99oD_6T2sciw,,&typo=1 -- 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. https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fMoobitalk.com&c=E,1,cmXU5UwTM-QnlFIef5N22Dzf8q1mxdJmyOmUGudPw4q_MCyl1KyESzwY9x2d_WOxa14rMitOUSRV2BiiHawYN3iaDZM65VJzDTPMr6s6HOscmwY4&typo=1 - 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 https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fLawSociety.com&c=E,1,CyKiEVKNrCUQ0BPKM-FsAM7yk5UVrEX0zV_kHaronjPf7Pvpjc8jBTEq9_DCIXWzbuPYxlhF6YXzd8ZD8OaYzhR2ZaenPiZ6-kXwpFI-LR1ZBw,,&typo=1:

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

https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.wipo.int%2fexport%2fsites%2fwww%2famc%2fen%2fdocs%2fcourtorderd2009-1520.pdf&c=E,1,lNeZ2HW4BCBQNYGIAlZYtPGXvd0-BEOXKjoETqn8kKlCRsmAC8e5PYAyol5M30hHA_-zu7M38ijtYibNGMSZp1IVMOVfUUdoNvIqaOQYkau1b3mbIA,,&typo=1

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
https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.leap.com%2f&c=E,1,0XbrabFaJNzZ_nlkTLfmmNXYT0sFSARluHWaimX3zIwxLUBulVqU2X4-WwnZ7_mH40l6UO7Jna-hgeRdbENvQfryALpSbz2GHaT6ss7O_m3jyBmtIeM,&typo=1

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:
>>
>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fSoundstop.com&c=
>> E,1,6G_oCGC3Ekc6y0cFR2wCgql0aBHfhbfd5ctt4XHOS5h-MfIEDA13S2n-BA8xpFHzUKyRG45gI3S7NYvDCsVp0CBOzxHYV7g2pWq7y7I56TqLt_E,&typo=1> - the court case settled; it doesn't appear the court issued a holding that is generally applicable to other UDRP proceedings.
>>
>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fsdt.com&c=E,1,m9
>> SDW5vPm2L2W0pVTIOxt9-pQZGi53q0-n8wVgHpUOzq9T0a87YQgkDkZgQW72yuyl7y3q1q8FF1tZkyBfKjCxpqFVsPx98NxgA7pUahqx-QsKbSoIozbdQ,&typo=1> - it looks like the UDRP panel terminated the proceeding to let the court case run its course.
>>
>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fMoobitalk.com&c=E,1,QjuI8Zqnd6Gc1dhsGD84YGwr9k71xvn2deHPz7ZDMdmUVIDQF8rvLF_wWgUwh32nTT-oiODuA94BUgatIKxKFPqJndzb_RVDsZUtDiEI&typo=1> -   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:
>>>
>>> https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.wipo.int%2fam
>>> c%2fen%2fdomains%2fchallenged%2f&c=E,1,9ToonqUTvs17BWn4BwAW3dX08S7xU
>>> wJuJio7LrcA88JbaxiRhN-SuccDsQ2J5mien2Y4usweW-0GNNPxU_Y3OjzLqCFWwF_V0
>>> vtbivbx_XiHb-KlwA,,&typo=1
>>>
>>> with cases that have been **repeatedly** brought to their attention
>>> in the past, including:
>>>
>>> 1.
>>> https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fSoundstop.com&c=
>>> E,1,r9MFzB-VevJWHWQw1NgGhu5_Qm5eNP2Qj28pdcyzgk2VoruiiveNSEdK-GJUWPCw
>>> 2e9ntYWcM_HukpII4nkIkFTCkLvgfuAgli57NTVM1HCPEZlBQobMyDc0uQ,,&typo=1
>>> --
>>>
>>> https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fdomainnamewire.co
>>> m%2f2016%2f07%2f21%2fmike-mann-overturns-udrp-decisi&c=E,1,UaIjapATb
>>> GEJJr29OHE3FgwDqU66Z1IV7ZlY5FqW30xPb2fdsntrd0bYgWhXGowAwir89q-dOaYIC
>>> xrUeLIQTPgF2QIUvjXDDT-DNCJqhinG-9g,&typo=1
>>> on-court/
>>> https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fdomainnamewire.c
>>> om%2fwp-content%2fsoundstop-1.pdf&c=E,1,5YnTkZ5E8CdBrDd8HfM-yP8aiW8X
>>> ivAEkehtRAqHIXzZD-c_KZZ1hCOv4fxB4dyLy3c7mDs8yAtvTP1jMKpawvLOMaXlZ-eo
>>> szFZyjf7i8yE74DDnXVsrQ,,&typo=1
>>>
>>> 2.
>>> https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fAustinPain.com&c
>>> =E,1,8mQ3IRTAhl0IZIrxSYfxtoaHrWySOxhoal7SVF9o8HSTmkLU2DqrH56Qoz1Mhzk
>>> gqIzTtXWOYfrzbBfadZdmNylc0Gp1NdsmNmXQ0tyNcIFb&typo=1 --
>>>
>>> http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.
>>> uscourts.cod.147273.23.0.pdf
>>>
>>> 3.
>>> https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fSDT.com&c=E,1,4Z
>>> yljat3VECb3_K5JcLQjYFhSh_zo6tlJqtF2-tfJvUuYqRtOKFZ0fyNkADhCtfqy50CiD
>>> t6i711vK_TdMfqKbbLXquEs30H0beB0usSpk6CYS3jpqg,&typo=1 --
>>>
>>> https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fdomainnamewire.co
>>> m%2f2015%2f07%2f22%2f50000-penalty-for-filing-a-friv&c=E,1,ghF-h_Nkp
>>> Drphr3ruXB2X8Mn3Mp9GB0mQ4-2sT2YZILzzvM_20xrQvq1ZZF0AWfD0CkdenrmPOJCN
>>> xGOYDkMWMQnNCGmovXz7vn9an4LmrrAnUeYrmMB8i4h&typo=1
>>> olous-udrp/
>>> https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fdomainnamewire.c
>>> om%2fwp-content%2fSDT-settlement1.pdf&c=E,1,9NBwxSKIXz78y3Cve_1Hz1_7
>>> KrLUwv-OtedxJ9qONJ2H4mMTem2pT-YKVaOrvhzC64spm5ljyKvpyX8p48r6FHfBAEl_
>>> u5rOrc-6Fw7ltItWNBDcnm7wcCA-&typo=1
>>>
>>> 4.
>>> https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fMoobitalk.com&c=
>>> E,1,9YlPgjAXMhjC2S9xwsQn68QYpWGPU-ax0iWZZr8LHtZzeukuygcRoB3lsIEt5_v3
>>> 8dlGPRrPnBVHdh3-We7Dtj71KjEczv3uhOjiIarkyaP57xhGe3hO2Vs,&typo=1 --
>>>
>>> https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.lexology.com%
>>> 2flibrary%2fdetail.aspx%3fg%3d5899d5f9-3bbc-416e-a9a&c=E,1,q5gDFHiDp
>>> rb72jDV8gs7NovfzXrNHkO0JVNMB3x7l4EW_LpJUkIhSmnUEerEH66a4SPZHhke_di3h
>>> vPH05itSM6aGaJ997o4BvWMhjGHEEbubti1&typo=1
>>> 5-7233a147b62c
>>>
>>> https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.legalis.net%
>>> 2fjurisprudences%2fcour-dappel-de-paris-pole-5-c&c=E,1,iYEik6JFKF6vH
>>> 7GFt2bQlaAmxv-rv-wt9VVr9hIIlEcUEWD7lxX3jED75lTwAPH7MH4w6dQWT5IjWedGc
>>> Qq_vTQk8fgSatqwEJYgrmGH4X0Ecf3aa_jr&typo=1
>>> h-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
>>> https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.leap.com%2f&c
>>> =E,1,yPf4qHsRcG91O3VcAUuxc3uj4rOdqRu2ALw2EEbAVl-4RIkiMcBCejzNFQPbFDr
>>> 0_3RkrbeMXu8cRXSbS8BWhOReUN70B5R3JjHxnAGuOqVszjpySvA,&typo=1
>>> _______________________________________________
>>> gnso-rpm-wg mailing list
>>> gnso-rpm-wg at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>
>>
>>
>> _______________________________________________
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>> gnso-rpm-wg at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>
>
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