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

Sun Apr 29 21:17:54 UTC 2018

Hi Greg,

The WIPO website refers to "orders and decisions", and makes no
distinction (the one you want to invent) to bar consent orders or
consent decisions from their list. As noted earlier, WIPO did not
hesitate to already include one (for lawsociety.com) in its
collection, a long-established precedent that is demonstrable proof in
how they view their own list:

http://www.wipo.int/amc/en/domains/challenged/

You claim "WIPO is offering case law", yet where's the "case law" in
the lawsociety.com court order? :-) The phrase "case law" doesn't
appear on that page, either, another invention by yourself as to what
that list is supposed to represent.

Indeed, while you claim these are "meaningless", they certainly mean
something to the *registrar*. Remember, the registrar would have kept
the domain in limbo, awaiting the outcome of the court case (which in
some cases challenged an adverse UDRP for the registrant, which would
have meant a transfer of the domain to the TM holder), without these
orders to the contrary. The consent order certainly carries the same
weight to them as any other court order.

Indeed, there have been occasions where judges *refuse* a proposed
consent order or proposed settlement by parties. (search Google for
"judge rejects settlement" without the quotes) The judges don't just
blindly rubber stamp them.

If the parties wanted to, the complainant could have simply withdrawn
the case, without any order. But, no....these orders went further then
that and memorialized various things (e.g. the money owed, where the
domain name should end up, etc.) within the court order.

As for where things "originate", recall lobster "was considered a mark
of poverty or as a food for indentured servants"

https://en.wikipedia.org/wiki/Lobster#History

yet now is treated somewhat differently. "Boom goes the dynamite" may
have had dubious origins, but the phrase was used correctly in the
prior email, as it has caught on and since become a popular way to
indicate a "pivotal moment":

https://en.wikipedia.org/wiki/Boom_goes_the_dynamite

While you might look down upon and snicker at things that have humble
origins, others do not.

Sincerely,

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

On Sun, Apr 29, 2018 at 3:30 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
> 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
>> >
>> >