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 Corinithians Reversed: Federal Court WIPO UDRP Challenge Upheld
posted by jon on Friday December 07 2001, @07:47AM
freespeechcenter writes " On December 5, 2001, the United States Court of Appeals for the First Circuit reversed the decision of the United States District Court of Massachusetts, remanding the Corinthians case back to the District Court. The District Court had ruled that it lacked Federal subject matter jurisdiction to hear Jay D. Sallen's challenge to a decision of the World Intellectual Property Organization (WIPO), an agency of the United Nations, that the domain name corinthians.com be transferred to a Brazilian corporation pursuant to a Uniform Domain Name Dispute Resolution Policy (UDRP) proceeding. The Court of Appeals held that Federal subject matter jurisdiction does indeed exist for such claims, and the District Court should consider Mr. Sallen's challenge to the WIPO UDRP decision."
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Mr. Sallen was also recently the respondent in another WIPO UDRP proceeding where WIPO ordered the transfer of the vivendiuniversalsucks.com domain espousing the following reasoning to support its order of transfer:
"This Panel, by a majority, is of the view that the addition of the word "sucks" to a well-known trademark is not always likely to be taken as 'language clearly indicating that the domain name is not affiliated with the trademark owner'. Two examples of the use of the word "sucks" which do not so indicate, even to English speakers, are:
(1) the use of the words "sucks" purely descriptively, as in the advertising slogan "Nothing sucks like Electrolux" (If there were a website at electroluxsucks.com, it would be unlikely to be taken as unaffiliated with the company Electrolux); and
(2) the website of the band Primus, primussucks.com, so named after the album Suck on This (1990). (The website of the band's lead singer, Les Claypool, at lesclaypool.com, has a link to the primussucks.com website). "
The logic of the WIPO panel in the vivendiuniversalsucks.com case has received critical media attention.
Additionally, the objectivity of WIPO as a UDRP panel has been heavily questioned, especially in light of the departure of Canadian company eResolution as a UDRP provider.
Essentially, the Corinthians decision issued by the U.S. Court of Appeals for the First Circuit is a landmark decision for domain name holders since it clearly holds that domain name owners whose domain names are ordered transferred in UDRP proceedings may seek redress in U.S. Federal Courts, challenging the UDRP decision ordering transfer of their domain names. The Corinthians decision by the United States Court of Appeals for the First Circuit provides a watershed in Federal Court for protection of Internet free speech with regard to domain names.
Respecfully submitted,
Edward Harvilla, Attorney
Director, Free Speech Center
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Corinithians Reversed: Federal Court WIPO UDRP Challenge Upheld
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I hope icannWatch.org can do something when it sees something wrong with some organization or policy. Just doing news or comments may not benefit the internet community enough. Now that icannwatch.org has earned some trust, in my view, from the internet community, it should play a more important role in the internet community. For instance, why can't icannwatch.org start a netizen union? When things do not work out, go on strike. If need volunteers, count me in. Send netizens' voice to Washington. If Washington does not a good job, weigh your vote in election years!
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Declan McCullagh's politechbot list has some coverage here (OT but interesting is that he mentions dropping a domain that one wouldn't think would then be used for pr0n sites). Not only do I not have any sympathy for Mr. Sallen, he is setting back the cause of valid free-speech sites. -g
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WIPO describes itself as follows at the following link:
http://www.wipo.org/about-wipo/en/
"With headquarters in Geneva, Switzerland, WIPO is one of the 16 specialized agencies of the United Nations system of organizations. It administers 21 international treaties dealing with different aspects of intellectual property protection. The Organization counts 177 nations as member states.
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If you're that concerned you should set up a site to keep an eye on those gnomes of Geneva. Hey, call it swisswatch.org. -g
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It does not appear that Linda A. Harvey and her sole partner, Mr. Kleger of Harvey & Kleger, in Methuen, Massachusetts, U.S.A., "sold out."
After Mr. Sallen's case challenging the Swiss-based WIPO decision in favor of the Brazilian corporation was initially wrongfully dismissed by the Massachusetts U.S. District Court on jurisdictional grounds, Ms. Harvey & Mr. Kleger persisted in representing Mr. Sallen, and they were victorious on appeal against the large Boston and Madison Avenue, New York law firms retained by the Brazilian corporation. Whether the Brazilian corporation, Corinthians Licenciamentos, LTDA, has its Boston and New York law firms file an appeal to the United States Supreme Court remains to be seen. Obviously some lawyers are "sell outs" and some are not.
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Ya. Do some research. I think they're called search engines. Go to Yahoo and do a search for one. -g
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The Corinthians case is indeed about free speech and another cherished right shared by Americans pursuant to the First Amendment of the Constitution -- freedom of religion. The following is quoted directly from the December 5, 2001, opinion issued in the Corinthians decision by Circuit Judges Lynch, Stahl and Lipez of the U.S. Court of Appeals:
"The [WIPO] panel concluded that publishing quotes from the Bible before CL (Corinthians Licenciamentos, LTDA) filed its complaint but after Sallen had notice there was a dispute brewing was insufficient to constitute a right or legitimate interest. A finding by a federal court that Sallen was within his rights when he used corinthians.com to post Biblical quotes would directly undercut the [WIPO] panel's conclusion"
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I fail to see your point. The Internet is an international thing. Companies from all over bid for the oppotunity to run new gTLD's (Global Top-Level Domain, the clue is in the "global"). Some won. Some lost. Some US companies will no doubt be supplying the various US and non-US companies that register domains with equipment, as they will no doubt supply a Californian company called "Verisign".
Add besides, the only sensible place for Dot-Coop is in Rochdale.
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If you read the judgment you'll find that it has nothing whatsoever to do with freedom of speech. This judgment is about jurisdiction, pure and simple. Sallen established that the US federal courts, along with competent courts in every applicable jurisdiction, can review UDRP decisions de novo. That's all. In fact in giving its judgment, the Court wrote: "Whether or not Sallen can win his claim under § 1114(2)(D)(v) is a separate question which does not bear on jurisdiction unless Sallen's claim is "wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682-83 (1946) " Sallen's claim was justified under the ACPA - I completely agree. Whether Sallen actually is a cybersquatter or not is a question to be decided by the lower court. That court may agree with the UDRP panel, or it may differ. IMHO the crucial point will be what the Court decides were Sallen's motives in uploading those biblical references. In the light of his cruziero.com registration, I suggest Sallen is on the backfoot in attempting to give credible evidence on the point. But that's my opinion FWIW. I challenge anyone to find a quote from the judgment in question that supports the absurd notion that USCA, in remitting this case back to the lower court for a decision, in any way support the notion that Sallen's position is strengthened by free speech arguments. I've read it all and kind find nothing that would suggest that. mjr
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You must have missed the report here about Afilias recreating itself in the US. Meanwhile, Robert Connolly's PSINet Japan, which wanted to wash its hands of Afilias, is reportedly going to be bought out by Cable and Wireless. -g
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Suggested reading for those interested in the debate concerning the fairness of WIPO UDRP decisions: Professor Michael Geist's analysis titled "Fair.com? An Examination of the Allegations of Systematic Unfairness in the ICANN UDRP" which is available in .pdf format at the following link:
http://www.lawbytes.com
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Informative articles about the U.S. Court of Appeals decision vis-a-vis WIPO in the U.K. publication, "The Register" dated 12/12/2001:
http://theregister.co.uk/content/6/23361.html
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