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    Highlights of the ICANNWatch Archive
    (June 1999 - March 2001)

    Uniform Dispute Resolution Policy (UDRP) WIPO Arbitrator Says Criticism=Bad Faith
    posted by michael on Monday July 16 2001, @10:01AM

    There are so many bad UDRP decisions in which arbitrators ignore the plain wording of the policy to find for trademark owners (but never, ever, stretch the policy the other way), that it seems almost unfair to single out the recent decision in Reg Vardy Plc v. David Wilkinson. In it, as first noted by The Register, the arbitrator finds that a criticism site is operating in bad faith because it really hates the company it is criticizing. Yes indeed: For this arbitrator at least (and for every subsequent decision that chooses to cite it as a precedent), strong free speech is not allowed under the UDRP.

    To win a UDRP case, complainants are supposed to have to show three things:
    1. The Respondentís domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
    2. The Respondent has no rights or legitimate interest in respect of the domain name; and
    3. The Respondentís domain name has been registered and is being used in bad faith.
    Bad faith can be shown in a lot of ways. But it's not supposed to include exercising your right to free speech (in countries where that right exists, anyway). Nevertheless, the arbitrator found that merely being an unhappy customer out to revenge oneself on the markholder wasn't a legitimate use, at least if you were being nasty. This is the precise finding that UDRP partisans swore couldn't happen when they sold us the UDRP.

    But wait. It gets better. It's undisputed that the registrant wasn't a competitor of the complainant; you would think that negative implication of the example of section 4(b)(iii) of the UDRP -- which says it's bad faith to register a name in order to disrupt the business of a competitor should lead one to conclude that if you're not a competitor, it's ok to have a site about how much you hate the named company? Not this arbitrator:

    Here's the key text of the arbitrator's decision:

    The Respondent has set up websites at the addresses which purport to be the "Customer Driven Complaints Site". The three website addresses all access the same site. Copies of pages from the websites are set out at tab 5 to the Complaint. It can be seen that the websites describe the fact that they have been created by "an unhappy REG VARDY customer" and make reference to phrases such as "shit-service at reg-vardy.com", "reg-vardysuck.com" and a "slag your manager off" section.

    There is also evidence (set out at tab 6 to the Complaint) that the Respondent is using the Complainant's mark as metatags for the sites. A list of these is set out at tab 6. The Complainant accepts the issue of the Respondent's use of the Complainant's mark as metatags is outside the scope of the Complaint. Nevertheless the Complainant regards the use as further evidence that the Respondent is deliberately attempting to attract traffic seeking a Complainant to his sites as a consequence of direct traffic away from the Complainant's website.


    The Panel takes account of the fact that paragraph 4(b)(iii) requires that the registration of the domain names should be primarily for the purpose of disrupting the business of a competitor. The Complainant is not a competitor of the Respondent. Nevertheless, in all the circumstances the Panel finds that the Respondent's registration of the domain names is primarily for the purpose of disrupting the Complainant's business with the objective of causing harm and nuisance to the Complainant. In the Panel's view this constitutes bad faith.

    There you have it boys and girls. Play nice, be polite, or you are guilty of bad faith under the UDRP. Criticism is OK -- as long as it's not too critical.

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  • Reg Vardy Plc v. David Wilkinson
  • The Register
    This discussion has been archived. No new comments can be posted.
    WIPO Arbitrator Says Criticism=Bad Faith | Log in/Create an Account | Top | 13 comments | Search Discussion
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    Re: WIPO Arbitrator Says Criticism=Bad Faith
    by cambler (chris@ambler.net) on Monday July 16 2001, @01:11PM (#1420)
    User #36 Info | http://onthenet.ambler.net/
    You know, there's bad decision after bad decision, and complaint after complaint, and only one thing holds true:

    Nothing is done about it. Ever.

    Tilting at windmills never looked so productive.

    Ambler On The Net [ambler.net]

    [ Reply to This | Parent ]
    Re: WIPO Arbitrator Says Criticism=Bad Faith
    by Mpawlo on Tuesday July 17 2001, @05:19AM (#1422)
    User #2936 Info | http://www.pawlo.com/
    If you read the decision and just not the report about it you will find that the respondent only submitted this to the panel:

    "With all due respect to your organisation, I am afraid I will not take part in the up coming dispute case...
    ... There is no point in my self continuing any discussion through your organisation as Reg Vardy seem to treat you (sic) organisation with the same contempt as they did my customer complaint."

    If the respondent would have used legal arguments and tried to defend himself in some fashion, the outcome could have been different. You should look into the recent Parisi decision where Parisi actually won in respect of criticism and free speech arguments.

    [ Reply to This | Parent ]

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