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

Sun Apr 29 19:30:15 UTC 2018

George,

A “clown car” is still a car and a crushed car is still a car, but neither
will get you where you want to go.  In a narrow semantic sense, you are
correct, up to a point; the word “order”’appears on the document. But in a
substantive way, you are still incorrect.  A settlement is not a decided
case, no matter how it’s labeled.  A settlement that is “ordered” by a
judge has no more value than a settlement that is handled out of court,
except between the parties (if the parties settlement is recorded with the
court, it is generally easier to come back to the court to enforce the
settlement).  For the rest of the world, these are meaningless in terms of
understanding how the court viewed this case. These are not “judicial
outcomes”; the judge had nothing to do with it.

There is certainly nothing in the settlement documents that would support
the assertion that the “UDRP decisions are likely highly deficient.”  It
would be misleading to leave people with that impression.

Whether a settlement is “of interest” is irrelevant. WIPO is offering case
law, not a list of all court activity.  One swallow does not make a spring,
and one settlement listing does not make “long-established precedent.”
(Nice try, though.) Why WIPO listed one settlement among the cases, I don’t
know; but it proves nothing about the intended scope of the list.  It
certainly doesn’t prove that everything i’ve said is wrong.  Indeed, it
doesn’t prove that anything I’ve said is wrong. In any event, this
settlement is not case law, and it would not be appropriate to call it a
case (except in a world where a clown car is still a car).

It’s amusing that the one settlement that’s listed is one that was
favorable to the Complainant, although the litigation was commenced by
Respondent (i.e., the Complainant got the domain in the settlement).    So,
while it shouldn’t be on the list, it is “interesting.”  (And no, listing
this settlement is not credible evidence of WIPO bias and conspiracy
against respondents....)

As for Moobitalk, I did not “concede”; I agreed. I had expressed no prior
opinion on the subject. But if calling it a concession makes you feel like
you won something, I wouldn’t want to take that away....

I’ll stop to note that “Boom goes the dynamite” originated in possibly the
worst and most embarrassing college TV
station sports newscast in history. One mistake followed another, but the
beleaguered student broadcaster was able to finally use his signature call
of “Boom goes the dynamite.”  The segment was so exceptionally, hilariously
bad it went viral, and a meme was born.  So, yeah, that is probably the
right “sound effect” for your email.

Best regards,

Greg

On Fri, Apr 27, 2018 at 7:49 AM George Kirikos <icann at leap.com> wrote:

> 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
> >>
> >>
> >>
> >> _______________________________________________
> >> gnso-rpm-wg mailing list
> >> gnso-rpm-wg at icann.org
> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
> >
> >
>
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