[gnso-rpm-wg] WIPO retaliation -- danger for RPM PDP participants?

Thu Jun 7 17:38:12 UTC 2018

Not really Volker.  If you go down that path then you will have literally hundreds of cases where parties defaulted entered into settlements etc  all of which is not useful in a jurisprudencial way. Again the  idea of the WIPO list is to have a list of cases that are meaningful -- i.e. those that were litigated by participating parties to a decision.  Those cases are useful to practitioners, complainants and respondents as they provide insights as to how courts view and deal with particular types of domain name cases.  Such decisions help parties determine whether or not they should pursue a matter in the first place as it provides guideposts as to what the law might be on a number of specific issues (e.g. what is a fair use, how far does free speech extend over domain names, what is bad faith, what is reverse domain name hijacking, etc.).  If you really feel like every case ever filed over UDRP decisions or domain names, regardless of the outcome, should be on a list somewhere, then you should have ICANN create such a list and have it on its website.  I don't think it will be very meaningful or useful as it will be full of cases that had no real adjudication of the merits and no learning on any issues.

-----Original Message-----
From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> On Behalf Of Volker Greimann
Sent: Thursday, June 7, 2018 12:30 PM
To: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] WIPO retaliation -- danger for RPM PDP participants?

Depends. Maybe the other party chose not to participate as it knew it had no chance. Or it did not want to risk the costs.  Or it never knew.
Speculating on the reasons why a party did not appear is futile. All that counts is that the UDRP decision was not upheld.

Volker

Am 07.06.2018 um 18:23 schrieb Nahitchevansky, Georges:
> George K
>
> I think this is getting way into weeds, too personal and not productive.  In your Pupa.com case, you filed a lawsuit in Ontario after the UDRP was filed.  The defendant (who had filed the UDRP) apparently did not make an appearance in the lawsuit you filed.  Your attorneys then filed for a default judgment that was granted -- particularly because nobody contested the matter.  This is hardly a fully litigated case where a judge has submissions from both parties and then rules on the merits.  I believe the idea behind the WIPO page is to have cases that were litigated by the parties (who both appeared) and where the court issued a decision.  Just so you know, there are dozens of cases where parties have filed lawsuits against a party who registered a domain name and/or who won a UDRP that resulted in defaults.  In my mind, those cases are not the type case that typically brings any real learning as to whether there has been a bad faith use or registration of a domain name.  Like settle
>   ments, which often involve business decisions, sometimes parties default in lawsuits -- particularly, where, as in your case the costs could be high and the domain name may ultimately not be worth the effort.  There are many entities that may make the business decision that since they have no connection to the forum (e.g., they do no business in the country in question and have no presence there), they don't want to spend the money and thus simply default.  So, in my view, I would not read your case as being particularly meaningful as to the merits as there was no real litigation with briefs and evidence submitted by both sides. So while you might want your case highlighted for personal reasons, I don't really think it belongs on the page if the page is meant to dedicated to fully litigated cases where the parties both appeared and then resulted in a court decision (e.g. Barcelona.com).
>
>
>
> -----Original Message-----
> From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> On Behalf Of George
> Kirikos
> Sent: Thursday, June 7, 2018 11:55 AM
> To: gnso-rpm-wg <gnso-rpm-wg at icann.org>
> Subject: [gnso-rpm-wg] WIPO retaliation -- danger for RPM PDP participants?
>
> Hi folks,
>
> I draw folks' attention to the page at:
>
> http://www.wipo.int/amc/en/domains/challenged/
>
> which had been a topic of discussion on this mailing list before. I was shocked to see that it has recently been edited to remove one additional case, namely the court case involving my own company (Leap of Faith Financial Services Inc.), defending the Pupa.com domain name.
> Attached are 2 PDFs, one generated today (June 7, 2018) and one generated a month ago (May 4, 2018). The Pupa.com case is the 2nd case in the May 4, 2018 PDF, but has been erased from the version from today.
>
> No other changes were made.
>
> I perceive this as direct retaliation by WIPO for my lack of support of Brian Beckham's candidacy for co-chair in this PDP. There can be no other reasonable explanation, given the timing of this removal.
>
> This retaliation by WIPO also says to members of this PDP that if they disagree with a position taken by WIPO, that there could be consequences, just as has happened here to my company. That is very dangerous.
>
> This petty action by WIPO reinforces my previously-stated opposition to Brian Beckham's candidacy as co-chair of this PDP, where I raised the issue of non-neutrality. It calls into question the entire legitimacy of future policy choices by this working group, if members of this PDP perceive that they could face retaliation too. The chilling effect of this action by WIPO is obvious.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
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