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


     
    Uniform Dispute Resolution Policy (UDRP) Does the UDRP Policy Breed Over-Confident Lawyers and Sloppy Work Products?
    posted by Mueller on Thursday September 27 2001, @12:52PM

    jultaylor writes "Are you a Respondent in a Complaint before the WIPO Arbitration Mediation Center? Was the Complaint prepared and filed by a lawyer and backed by a large law firm? Did you assume that the Complaint would be fair and accurate? Well, that's what I had assumed. But I was wrong."



    In December 1999 I registered the geicodirect.org domain name as an identifier for the "Beware of Geico… A Consumer Opinion Forum". Fourteen months later I received a letter from Arnold and Porter [Geico's trademark litigation counsel] stating that my registration of geicodirect.org domain name constituted "statutory and common law trademark infringement, dilution, and unfair competition in violation of GEICO's valuable rights."

    The attorney demanded "that [I] both cease any and all use of the GEICO mark and name and unconditionally transfer to GEICO the Internet domain name "geicodirect.org" and to "[s]ign and have notarized the enclosed name change agreement in order to assign the "geicodirect.org" domain name to its rightful owner, GEICO." The form that I was being instructed to sign, however, was not enclosed.

    Now you might be inclined to say, "Well, that was no big thing; it was simply an administrative or secretarial oversight." But if that was the only mistake that was made I wouldn't bother to share this story.

    Three weeks later I received a second letter in which I was again instructed to "[s]ign and have notarized the enclosed name change agreement …" Same verbiage. Same mistake as the attorney once again failed to enclose the form that I was being instructed to sign.

    As a result of my refusal to relinquish the geicodirect.org domain name, a Complaint was filed against me before the Center and, as required, the attorney sent me a copy of the Complaint via courier. Within minutes I was surprised to discover that the Complaint included a number of erroneous and misleading statements and omissions. For instance:

    · Pages were missing from both the text of the Complaint as well as from the annexed documents (including the title/home page of my geicodirect.org website);

    · The attorney falsely claimed to have made a telephone call to me that was never made. In fact, she was unable to provide an exact date when the purported call was made. Rather she used an "on or about" date;

    · She attributed a statement to me that I did not make but was made by another person who visited the website, had posted a signed message in the readers' response section and who was clearly identified;

    · The text for one of the footnotes was missing. Wonder if it was anything important?;

    · She exaggerated details as in using the words "repeatedly" and "numerous" to describe a single, isolated incident; and

    · In some instances she simply mixed facts in order to create misleading statements.

    Excluding the annexed documents, the Complaint consisted of 27 pages, 90% of which I assume was standard boilerplate text. So with that in mind, the fact that there were mistakes on eight (8) of those 27 pages makes the lack of accuracy and detail even more egregious. (If you would like to receive an annotated copy of the Complaint, you can send me an e-mail to jultaylor@earthlink.net and I'll be glad to send it to you.)

    Admittedly, I do not have any legal training but based upon what I have read and heard it seems that the domain name challenge procedure gives trademark holders some very broad rights. Despite the numerous mistakes that had been made by the attorney I did not believe that I could successfully prevail against the trademark-based Complaint and so I chose not to spend the time and expense required to file a response. I simply registered www.geico-vs-taylor.org so that I might continue to tell my story. The panelist that the Center has assigned to render a decision in this Complaint will, therefore, render his decision in light of my default.

    I believe that it is human nature to give less than our best whenever we believe that a victory is guaranteed. Somewhat like an athlete who fails to train hard because he/she has no real respect for or fear of the opponent. Even though that person may gain the victory the contest might very well leave a bad taste in the mouths of all those who have witnessed the contest… as this incident has certainly left a very bad taste in my mouth.

    Are the elements of truth and accuracy getting lost amidst all of the legal statutes, citations, and laws? Is there an assumption of, "Well, let's just throw something together and leave it up to the Respondent to catch any mistakes"? Recently I shared my story with an attorney and he suggested that the attorneys at Arnold and Porter might be doing so many UDRP cases that they weren't bothering with details and things were getting missed. Perhaps he is right but whatever the reasons, I think that it is wrong to produce a work product that is less than fair, less than accurate, and less than the truth.

    Once again, my question is a simple one: "Does the Uniform Domain Name Dispute Resolution Policy Breed Over-Confident Lawyers and Sloppy Work Products?" If so, there is clearly something wrong with the system. What do you think?

     
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    Does the UDRP Policy Breed Over-Confident Lawyers and Sloppy Work Products? | Log in/Create an Account | Top | 5 comments | Search Discussion
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    Re: Does the UDRP Policy Breed Over-Confident Lawy
    by Ron_Bennett on Thursday September 27 2001, @02:00PM (#2592)
    User #3011 Info | http://www.wyomissing.com/bennett/
    There's no "discovery" with UDRP so the Complainant can say almost anything with little fear of the complaint being thrown out, assuming it's filled out properly and the arbritration fee is paid.

    Keep in mind that much of the superfluous language is often added to intimidate the Respondent so they choose not to respond and thus typically allowing the Complainent to prevail by default, even if their statements are totally false as long as their complaint satisfies the minimum requirements - showing one has a trademark or similar claim, claiming the domain in question is confusing/identical/damaging/turnishment, etc of/to the mark, and claiming the registration/use is in bad faith.

    On the bright side, be glad you didn't sign any transfer forms...for that would have cost them less than $100 to get your domain...by them doing a UDRP, they've had to spend at least $1600 to get your domain.
    [ Reply to This | Parent ]
    Re: Does the UDRP Policy Breed Over-Confident Lawy
    by dtobias (dan@tobias.name) on Saturday September 29 2001, @08:08AM (#2636)
    User #2967 Info | http://domains.dan.info/
    Personally, I think those who fail to even respond to UDRP complaints deserve what they get when they lose them... it's a defeatist attitude to just say "the process is biased against me, so I won't even bother to fight it!". There are a few fair-minded panelists in the bunch, and some might actually have sympathy for your use of a domain for noncommercial criticism, or might hold falsehoods in the complaint against the complainant if they're pointed out in the response. No lawyer is needed to make a response, so there really isn't much excuse for anyone who thinks they have any semblance of a case to retain their domain to just allow the complainant to prevail unopposed.

    See my tips on how to deal with UDRP challenges. (Disclaimer: I haven't actually been involved in one myself, and am not a lawyer, but I have read many decisions of past cases, and have a good understanding of what basis these cases have been decided under.)
    [ Reply to This | Parent ]
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