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    Uniform Dispute Resolution Policy (UDRP) Corinithians Reversed: Federal Court WIPO UDRP Challenge Upheld
    posted by jon on Friday December 07, @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."



    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

    CIRA Annual General Meeting Webcast Thursday, Dec. 6 | EU and ITU check on ICANN  >

     

     
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  • espousing the following reasoning
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    Corinithians Reversed: Federal Court WIPO UDRP Challenge Upheld | Login/Create an Account | Top | 95 comments | Search Discussion
    Threshold:
    The following comments are owned by whoever posted them. We are not responsible for them.
    Re: Corinithians Reversed: Federal Court WIPO UDRP
    by fnord (d_d@email.com) on Saturday December 08, @12:07PM (#4008)
    User #2810 Info
    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

    Re:Just don't talk, take action!
    by JohnR (yes@fakemail.com) on Saturday December 08, @04:08AM (#3991)
    User #2937 Info
    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!


    THE SOLUTION TO PROTECT INTERNET FREE SPEECH
    by freespeechcenter (registry@freespeechcenter.org) on Sunday December 09, @05:09AM (#4024)
    User #3147 Info | http://www.freespeechcenter.org

    White Paper Synopsis: "Protecting Internet Free Speech: The FACT Project"

    The "FACT Project" (First Amendment Computer Technology) is a dynamic endeavor of the "Free Speech Center," a division of the Pocono Sports Club, aimed at promoting and preserving Internet free speech in opposition to a corrupt World Intellectual Property Organization (WIPO). The Pocono Sports Club, started by a three-time honorably discharged U.S. military veteran, is an organization registered with the Corporation Bureau, Commonwealth of Pennsylvania, U.S.A., dedicated to the advancement of amateur, international sport and human rights. The Pocono Sports Club raises money for its endeavors via e-commerce. Due to the involvement of the Pocono Sports Club in e-commerce, its founder is also actively engaged in advocacy on behalf of Internet consumers, as can be ascertained from the following links to recent Internet news articles:


    http://stacks.msnbc.com/news/624000.asp


    http://www.icannwatch.org/article.php?sid=421

    PROBLEM:


    Two recent decisions by the World Intellectual Property Organization (WIPO), a member agency of the United Nations have created a global "chilling effect " on Internet free speech, namely the decisions involving the domain names: vivendiuniversalsucks.com and phillipssucks.com. The decisions are the seminal rulings issued to establish global precedent for the restriction of Internet free speech, and the WIPO rulings are based on flawed logic not in accord with either United States or international law.

    The WIPO rulings violate the holdings
    of U.S. Federal Court decisions interpreting the First Amendment to the United States Constitution,
    and the letter and spirit of Article 19 of the United Nations, Universal Declaration of Human Rights.
    The Free Speech Center intends to challenge WIPO in United States DistrictCourt and before a tribunal of the United Nations in the very near future with regard to its flagrant disregard for longstanding principles of international law:

    Article 19. United Nations, Universal Declaration of Human Rights.

    Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

    The two highly questionable decisions by WIPO can be reviewed at the following links:

    http://arbiter.wipo.int/domains/decisions/html/2001/d2001-1121.html


    http://arbiter.wipo.int/domains/decisions/html/2001/d2001-1195.html


    SOLUTION:


    The Free Speech Center, a division of the Pocono Sports Club, has acquired all of the global second level Internet domains in the format,
    gTLDsucks.info and gTLDprotest.info, e.g. comsucks.info, comprotest.info, bizsucks.info, bizprotest.info, intsucks.info, intprotest.info, etc. Through its "Free Speech Center" the Pocono Sports Club will soon be able to offer free to any not-for-profit, organization in the world, third level domains with forwarding to the web page of the not-for-profit organization's choice.
    For example, the Pocono Sports Club maintains a web page at http://www.poconosports.com to support an ebay e-commerce, fundraising endeavor. If in the near future, an Internet consumer was dissatisfied with the customer service or products of the Pocono Sports Club, a not-for-profit consumer organization could contact the Free Speech Center via www.freespeechcenter.com (under construction) and pursuant to the "FACT Project" (First Amendment Computer Technology) a consumer organization would be given, free-of-charge, if available, the third level domain
    poconosports.comsucks.info or poconosports.comprotest.info with uniform resource locatior (URL) forwarding to
    the web page of the consumer organization's choice.

    Accordingly, the consumer organization could then publish a protest website at either www.poconosports.comsucks.info or www.poconosports.comprotest.info as a factual counterpoint to the content published by the
    Pocono Sports Club at www.poconosports.com. The Free Speech Center is positioned to offer to the global Internet community, pursuant to its "FACT Project," third level protest domains for use in creating two protests websites as factual counterpoint to any Internet website bearing a global top-level-domain name, thereby, protecting Internet free speech for the benefit of the world citizenry in current and future generations.

    "One World United" for Internet Free Speech

    Re: That's great
    by freespeechcenter (registry@freespeechcenter.org) on Monday December 10, @01:54AM (#4038)
    User #3147 Info | http://www.freespeechcenter.org
    Thank you for your opinion. As noted by the U.S. Court of Appeals for the First Circuit in the Corinthians case, The Anticybersquatting Consumer Protection Act (ACPA) attempts to balance protection for trademark holders from cybersquatters with protection for rightful domain owners from trademark owners who abusively assert their trademark rights to effect "reverse domain name hijacking." The Appellate court maked the following observation in the Corinthian case:

    "[i]n the past confusingly similar trademarks could exist simultaneously in different geographical areas or in different business sectors without creating consumer confusion. The internet has drastically changed this situation because a domain name is both unique and global in scope."

    In fact, in the Corinthians' case, the Brazilian Corporation, Corinthians Licenciamentos, LTDA, unsuccessfully argued before the U.S. Circuit Court of Appeals that it was NOT a "mark owner" because it had not registered "Corinthians" as a U.S. trademark, attempting to remove the dispute from the umbrella of protection for American, domain name holders provided by ACPA with regard to reverse domain name hijacking, especially with regard to the statutory provision of the ACPA at 15 U.S.C. § 1114(2)(D)(v):

    "A domain name registrant whose name has been suspended, disabled, or transferred under a policy described under clause (ii)(II) may, upon notice to the mark owner, file a civil action to establish that the registration or use of the domain name by such registrant is not unlawful under this chapter."

    In rejecting the Brazilian Corporation's ploy, the Appellate court made the following observation in its analysis of trademark interests versus domain name holder interests:

    "[i]t would be very odd if Congress, which was well aware of the international nature of trademark disputes, protected Americans against reverse domain name hijacking only when a registered mark owner was doing the hijacking. Such a policy would permit American citizens, whose domain names are subject to WIPO transfer orders, to get relief against abusive mark owners that have registered in the U.S., but not against abusive mark owners that have not registered (including both foreign mark owners and domestic mark owners that have not registered). It would leave registrants unprotected against reverse domain hijackers so long as the hijackers are not registered with the PTO [U.S. Patent and Trademark Office]."

    It is the position of the Free Speech Center that the World Intellectual Property Organization (WIPO) proceedings pursuant to the ICANN mandated Uniform Domain Name Dispute Resolution Policy (UDRP) have become a "kangaroo court" where abusive, foreign trademark owners with questionable marks can "buy" a UDRP ruling, allowing the abusive, foreign trademark owners to strip domain names from rightful, American domain name owners. The Free Speech Center will be offering the "FACT Project" in the near future, and it will provide pro-bono, (volunteer) legal representation in United States District Court for Americans victimized by WIPO orchestrated reverse domain name hijacking.

    Additionally, the Free Speech Center is preparing a Resolution 1503 Complaint for filing with the United Nations, High Commissioner on Human Rights, Geneva Switzerland, to challenge WIPO, a member agency of the United Nations, with regard to its flagrant violations of Article 19, United Nations, Universal Declaration of Human Rights with regard to global, Internet free speech:

    Article 19. Universal Declaration of Human Rights

    Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers


    Re: Freespeechcenter Responds
    by freespeechcenter (registry@freespeechcenter.org) on Saturday December 15, @07:28AM (#4076)
    User #3147 Info | http://www.freespeechcenter.org
    For an individual with such obviously glaring bias against legal efforts to promote Internet free speech, the cloak of your posting under the name "anonymous" serves your interest very well by masking the origin of your foolish rant.
    Re: Why are Americans COWED by the Swiss ?
    by fnord (d_d@email.com) on Saturday December 08, @10:53AM (#4005)
    User #2810 Info
    Why is the world COWED by America? -g
    WIPO United Nations' Status
    by freespeechcenter (registry@freespeechcenter.org) on Friday December 07, @09:15AM (#3974)
    User #3147 Info | http://www.freespeechcenter.org
    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.
    Re: So ? Is the ISOC a United Nations Agency ?
    by freespeechcenter (registry@freespeechcenter.org) on Saturday December 08, @07:05AM (#3995)
    User #3147 Info | http://www.freespeechcenter.org
    No, ICANN is not a United Nations Agency. ICANN is a not-for-profit corporation that administers the domain name system pursuant to a Memorandum of Understanding with the U.S. Department of Commerce.

    http://www.ntia.doc.gov/ntiahome/domainname/icann-memorandum.htm
    Re: Corinithians Reversed: Federal Court WIPO UDRP
    by fnord (d_d@email.com) on Friday December 07, @11:22AM (#3977)
    User #2810 Info
    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
    Re: WTO Seattle - Americans Voiced Their Opinions
    by fnord (d_d@email.com) on Friday December 07, @04:43PM (#3985)
    User #2810 Info
    No, silly. Swisswatch.org exists and appears to be commercial. Create an organization called swisswatch, file a claim thru the UDRP (not thru WIPO) and take it away from them. That'll show 'em.

    All seriousness aside, here's some C|NET coverage of the court decision. -g

    Re: WTO Seattle - Oh please, give it a rest...
    by fnord (d_d@email.com) on Saturday December 08, @05:21AM (#3994)
    User #2810 Info
    Strangely, blackhelicopterwatch.org is available for registration. Someone better grab it quick. -g
    Two Lawyers Who Did Not Sell Out
    by freespeechcenter (registry@freespeechcenter.org) on Friday December 07, @03:05PM (#3983)
    User #3147 Info | http://www.freespeechcenter.org
    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.
    TO THE CONTRARY . . .
    by freespeechcenter (registry@freespeechcenter.org) on Saturday December 08, @09:45AM (#4004)
    User #3147 Info | http://www.freespeechcenter.org
    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"


    Re: collectively represent a diversity of viewpoin
    by fnord (d_d@email.com) on Friday December 07, @04:37PM (#3984)
    User #2810 Info
    Ya. Do some research. I think they're called search engines. Go to Yahoo and do a search for one. -g
    TO THE CONTRARY . . .
    by freespeechcenter (registry@freespeechcenter.org) on Saturday December 08, @09:43AM (#4003)
    User #3147 Info | http://www.freespeechcenter.org
    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"


    THE SOLUTION TO PROTECH INTERNET FREE SPEECH
    by freespeechcenter (registry@freespeechcenter.org) on Sunday December 09, @05:11AM (#4025)
    User #3147 Info | http://www.freespeechcenter.org

    White Paper Synopsis: "Protecting Internet Free Speech: The FACT Project"

    The "FACT Project" (First Amendment Computer Technology) is a dynamic endeavor of the "Free Speech Center," a division of the Pocono Sports Club, aimed at promoting and preserving Internet free speech in opposition to a corrupt World Intellectual Property Organization (WIPO). The Pocono Sports Club, started by a three-time honorably discharged U.S. military veteran, is an organization registered with the Corporation Bureau, Commonwealth of Pennsylvania, U.S.A., dedicated to the advancement of amateur, international sport and human rights. The Pocono Sports Club raises money for its endeavors via e-commerce. Due to the involvement of the Pocono Sports Club in e-commerce, its founder is also actively engaged in advocacy on behalf of Internet consumers, as can be ascertained from the following links to recent Internet news articles:


    http://stacks.msnbc.com/news/624000.asp


    http://www.icannwatch.org/article.php?sid=421

    PROBLEM:


    Two recent decisions by the World Intellectual Property Organization (WIPO), a member agency of the United Nations have created a global "chilling effect " on Internet free speech, namely the decisions involving the domain names: vivendiuniversalsucks.com and phillipssucks.com. The decisions are the seminal rulings issued to establish global precedent for the restriction of Internet free speech, and the WIPO rulings are based on flawed logic not in accord with either United States or international law.

    The WIPO rulings violate the holdings
    of U.S. Federal Court decisions interpreting the First Amendment to the United States Constitution,
    and the letter and spirit of Article 19 of the United Nations, Universal Declaration of Human Rights.
    The Free Speech Center intends to challenge WIPO in United States DistrictCourt and before a tribunal of the United Nations in the very near future with regard to its flagrant disregard for longstanding principles of international law:

    Article 19. United Nations, Universal Declaration of Human Rights.

    Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

    The two highly questionable decisions by WIPO can be reviewed at the following links:

    http://arbiter.wipo.int/domains/decisions/html/2001/d2001-1121.html


    http://arbiter.wipo.int/domains/decisions/html/2001/d2001-1195.html


    SOLUTION:


    The Free Speech Center, a division of the Pocono Sports Club, has acquired all of the global second level Internet domains in the format,
    gTLDsucks.info and gTLDprotest.info, e.g. comsucks.info, comprotest.info, bizsucks.info, bizprotest.info, intsucks.info, intprotest.info, etc. Through its "Free Speech Center" the Pocono Sports Club will soon be able to offer free to any not-for-profit, organization in the world, third level domains with forwarding to the web page of the not-for-profit organization's choice.
    For example, the Pocono Sports Club maintains a web page at http://www.poconosports.com to support an ebay e-commerce, fundraising endeavor. If in the near future, an Internet consumer was dissatisfied with the customer service or products of the Pocono Sports Club, a not-for-profit consumer organization could contact the Free Speech Center via www.freespeechcenter.com (under construction) and pursuant to the "FACT Project" (First Amendment Computer Technology) a consumer organization would be given, free-of-charge, if available, the third level domain
    poconosports.comsucks.info or poconosports.comprotest.info with uniform resource locatior (URL) forwarding to
    the web page of the consumer organization's choice.

    Accordingly, the consumer organization could then publish a protest website at either www.poconosports.comsucks.info or www.poconosports.comprotest.info as a factual counterpoint to the content published by the
    Pocono Sports Club at www.poconosports.com. The Free Speech Center is positioned to offer to the global Internet community, pursuant to its "FACT Project," third level protest domains for use in creating two protests websites as factual counterpoint to any Internet website bearing a global top-level-domain name, thereby, protecting Internet free speech for the benefit of the world citizenry in current and future generations.

    "One World United" for Internet Free Speech

    PhillipsSucks
    by mjrippon on Monday December 10, @01:16AM (#4037)
    User #2960 Info
    Have you even read this decision? You seem to be completely missing the point. The panellist in that case was making the point that the Respondent had focussed on the fact that the domain name was not confusingly similar to the Complainant's mark, when what he should be focussing on was that he had a legitimate right to use the domain name (eg. he had a point to make - he didn't) and/or that the name wasn't registered or used in bad faith (eg. he was entitled to use the mark in the domain name as he had a legitimate point to make, regardless of the merits of that point).

    In all your whinging none of you deal with the point made in both the Phillips and VivendiUniversal cases that someone who does not speak English as their first language may well recognise the mark but not the use of the "sucks" suffix. I am glad that both cases involved the use of English panellists. From what I see of the postings on this site, some Americans don't seem to understand that there are people in the world who don't actually understand English. At least we are used to dealing with foreign languages in our European context.

    In PhillipsSucks, if the Respondent had used the domain name to say something - anything - about Phillips then he would have a case to make. He could argue that he was a legitimate user and is not making bad faith use. The problem for him was that he was not a legit user, and he was found to be making bad faith use. The panellist considered whether the Respondent was making good faith non-commercial use of the domain name and concluded on the evidence before him that he was not. That's what arbitration is all about.

    What I object to is this theory used by some panellists that using a mark in a -sucks domain name is effectively competing with the mark in question and therefore bad faith. THAT is what prevents free speech, but that is NOT what PhillipsSucks was all about....

    mjr
    THE REGISTER (U.K.) ARTICLE ON WIPO
    by freespeechcenter (registry@freespeechcenter.org) on Thursday December 13, @03:20AM (#4062)
    User #3147 Info | http://www.freespeechcenter.org
    Link to the recent article of the United Kingdom publication "The Register," concerning the WIPO "SUCKS" matter:

    http://theregister.co.uk/content/6/23362.html
    Re: THE REGISTER (U.K.) ARTICLE ON WIPO
    by fnord (d_d@email.com) on Thursday December 13, @07:59AM (#4066)
    User #2810 Info
    I don't disagree with what the article says but reiterate that these are not the best examples to hang a free speech campaign on. It is instructive to go to wipo.org and do a search on 'sucks' cases.

    Other cases include that regarding salvationarmysucks.com which was transferred, apparently due to the respondent not putting up a site while asking the Salvation Army for more than out of pocket expenses. This would seem to be a slam dunk based on intent to profit. OTOH, see the crappytire.com complaint, which was denied, where the respondent offered the domain for sale for considerably more money, and put up a site that apparently had the look and feel of sites belonging to the complainant.

    See also the adtsucks.com ruling. The complainant had the name transferred from one Rick Schwartz, AKA Domain King, whose philosophy regarding registered names can be found here. The panel ruled in part:

    Respondent’s ‘free speech’ claim is untenable. The evidence clearly displays a pattern of registering names which include famous marks plus the word ‘sucks’.
    That is, from a pattern of behavior they are inferring intent.

    Another case found that some entity called AFX had registered autotradersucks.com as well as other names such as wwwautotrader.com and ordered all the permutations transferred. If one simply wished to complain about autotrader, a reasonable person might ask why one also needs to typosquat. Compare that to the denial of a claim for aoltrader.com, even though the respondent offered it to complainant America Online for more than out of pocket expenses. There is also the ruling regarding mclanenortheast.com and mclanenortheastsucks.com, both of which were not transferred.

    Also see the natwestfraud.com ruling which was denied, even though the respondent had asked, even demanded, millions of dollars from the complainant for rights to the name. Check the reference within that ruling to natwestsucks.com which was transferred, the apparent difference being that the latter had never published a valid website. Indeed, the registrant of the latter lost another ruling over directlinesucks.com, and another ruling over standardcharteredsucks.com. Apparently WIPO considers that claiming to have acted only in the interest of the complainants by doing defensive registration for which each trademark holder could pay him a few thousand dollars whilst refraining from putting up a website is a bug, not a feature. And apparently my suggestion to mjrippon elsewhere on this thread that dixonssucks.com would be a 'safer' registration is wrong, or at best moot, as the same respondent also failed to retain that domain using the same logic.

    And finally (I've elsewhere also mentioned the similar Harvey and Zuccarini cases), one Dan Parisi, known for whitehouse.com and madonna.com amongst other newsworthy namespace stories, retained lockheedsucks.com and lockheedmartinsucks.com in another WIPO ruling, the only apparent difference between this and some other rulings being that the latter pointed to Parisi's sucks.com, which was then a general rant site (sucks.com presently redirects to sucks500.com which remains a rant site, perhaps sucks.com will be used in future for another purpose).

    What do I infer from all this? That most, if not all, of these respondents are using the registration of names to turn a profit, are using trademarked names to do so, and are showing a pattern of doing so.

    What I don't see is a pattern of behavior, even from one dispute resolution provider, or even from the same panelists who have ruled either for or against in various of these cases. I think the case can be made that most all these sucks respondents are gaming the namespace. I don't see a similar pattern and don't think the case can be made that panelists are gaming the resolution process to consistently transfer sucks domains.

    I haven't seen, thru a WIPO search anyway, one single example of a domain being taken away from some consumer putting up a single sucks website to criticize an entity owning a trademark that is included in the domain name. Unless and until that happens, even once (to get my dander up, there need not be a pattern), I don't see this as a battle worth fighting. -g

    Re: PhillipsSucks
    by fnord (d_d@email.com) on Monday December 10, @07:41AM (#4043)
    User #2810 Info
    mjrippon writes:
    In all your whinging none of you deal with the point made in both the Phillips and VivendiUniversal cases that someone who does not speak English as their first language may well recognise the mark but not the use of the "sucks" suffix.
    While I otherwise mostly agree with your points, I have a problem with this one. Which term is more likely to be well known and understood in the English speaking world, sucks or vivendiuniversal? For example, I'd never heard the phrase vivendiuniversal prior to this story and I still don't know quite who they are or what they do (that is, what is their trade), but I've heard the phrase sucks thousands of times and have a general sense of its by far most common meaning.

    That this ratio should be turned on its head in the non-english speaking world isn't credible. I think I can safely say that I also hear the phrase phillips used in any context (Phillips the electronics maker isn't even the only possessor of a 'phillips' trademark) far less often per day than I hear the phrase *sucks used in its pejorative context. This is true even of English media content, the internet, television, et cetera, so how the non-English speaking world would learn the meaning of endless trademarks in advance of learning the common meaning of sucks escapes me.

    To me what is important here is at what point does one draw the line between the right of consumers to criticize and the right of companies not to be extorted. I think that varies from case to case, as it should, and while I may disagree with exactly where the line is drawn in some individual cases under the UDRP, it seems to remain a shifting line on a case by case basis to them as well. A couple of other cases are worth mentioning, the various permutations of guinness-sucks domains taken away from John Zuccarini, after he got in trouble over the guinnes.com domain (Mr. Zuccarini is a prolific typosquatter), and the case transferring various wal-mart-sucks domains from Kenneth Harvey who had previously registered walmartcanada.com and then lost it through the UDRP.

    A common element in these cases is the presumed intent of the registrants. Even to someone like the undersigned who is opposed to the UDRP, the clear intent in these cases is profit, not criticism. Zuccarini and Harvey are not the best posterkids for free speech in the namespace. Neither is Sallen. -g

    Re: PhillipsSucks
    by mjrippon on Monday December 10, @11:01PM (#4047)
    User #2960 Info
    I agree with your conclusion, but the point I am making is that both Vivendi Universal (a multinational media group, Vivendi is a French media company that bought out Universal studios) and Phillips are trademarks, capable of distinguishing the products marked as such in *any* language, whereas sucks, although being widely understood in its slang sense, is still an English language word that may not necessarily be understood at all.

    For example, a doctor in Karachi or Chang Mai may recognise that his TV is made by Phillips, but may have no idea what "sucks" means. One navigating the internet, he may come across the domain name PhillipsSucks and believe "sucks" to be a new Phillips product. Who are we, as native English speakers, to say different?
    Re: PhillipsSucks
    by fnord (d_d@email.com) on Tuesday December 11, @05:48AM (#4053)
    User #2810 Info
    Well, the language of the namespace to date is English for historical reasons, though IDN's remain pending, the delay partly due to trademark issues. As you say yourself, Vivendi is a French company, and Phillips, I believe, is Dutch. The namespace at most is based on Roman characters. Someone who doesn't read Roman characters (a majority of the world's population), can't be assumed to know the meaning of the character string vivendiuniversal, any more than I understand or can distinguish between or amongst Chinese characters.

    Your hypothetical doctor in Karachi or Chang Mai with a Phillips TV may also possess a hypothetical satellite dish and watch Jerry Springer, thus learning the meaning of the term sucks. If one is willing to assume that some non-English (or non-Roman character reading) person can make such a distinction, not just for one trademark made up of Roman characters, but for all Roman character trademarks worldwide, one should also be willing to assume that that person is capable of understanding enough to know the meaning of the term sucks. What's more, if that person is able to understand the trademark portion of a domain name, that person should be equally able to understand the content available from that address, assuming it is in the same or similar language. If the content is critical of a trademark holder then there is little chance that most would assume it was owned by the trademark holder. As I say, it comes down to intent.

    The idea that a trademarked name in combination with any character string should, or even could, be taken to mean that that character string is a product (or service) of the trademark holder is an unwarranted expansion of trademark rights. If I register FnordAppleOrchard.com it shouldn't be a given that I am passing off as, or critical of, a computer maker. -g

    Re: apples & orchards
    by mjrippon on Wednesday December 12, @04:00AM (#4058)
    User #2960 Info
    Thank you for the support.

    I'm not arguing on whether or not anyone or everyone has the language skills to understand the slang application of "sucks". My point is that trademarks are valid only if they are distinctive. If they are descriptive, they *are* being used as language, and that's where the dragons lie.

    Let me try another example. My firm does a lot of shipping work. One famous multinational carrier is Yan Ming. I know that Yan Ming is cantonese, but I have no idea whether it means, translated from cantonese "Harry Smith" or "our boats never sink". To me as a non-Cantonese speaker, the words Yan Ming signifies a carrier, and I would recognise them (if written in our alphabet!) in any language. That's what trademarks are for. To act as a guarantee of origin to the consumer (see Cornish, or Laddie on the subject).

    Now, I *do* accept that where generic dictionary words are used, the domain name is questionable as intellectual property. As said above, AppleComputers.com is clearly an infringement. However I have a client who, having lost Dixons-online.com then registered "DixonsCustomers". Dixons may have an argument to run that they should be entitled to that domain name for, say, a customer support website. However, my client's arguments in support of his registration are perfectly legitimate. He runs a support site for unhappy Dixons customers. Here be dragons....

    mjr
    Re: apples & orchards
    by fnord (d_d@email.com) on Wednesday December 12, @09:36AM (#4061)
    User #2810 Info
    I think your client would be safer with Dixonssucks.com or Dixons-sucks.org.uk or something similar. Dixons Customers presumably includes the class of both the happy and the unhappy customer.

    Dixons is a good example for a number of reasons. Being in Canada I had to do a search to figure out what Dixons is. The only Dixons that rang a bell with me was a Canadian (?) coffee company I hear advertised on the radio, and on further searching I find that that is in fact spelled Dicksons. I was unable to find a website for the latter, the coffee company I mean. Meanwhile, going to dixons.com bounces me to dixons.co.uk, arguably where they should belong, if they're unknown even out here in an English speaking colony, why should they be considered worthy of a global .com. So I guess my point remains that the meaning of sucks is better known than most supposedly global brand names.

    As for Yan Ming, a cursory search suggests it is much more likely to mean Harry Smith than our boats don't sink. I was unable to find a site for the shipping company, either thru searching on that term, or thru yanming or yan-ming .com/.net/.org/.hk/.cn/.com.hk/co.hk/ and various others. I eventually found them only thru a more specific search and after following a number of links, at yml.com.tw. That is only partially due to the fact that the shipping company (unless there are two similar ones) is actually yang ming. The latter was almost equally hard to find. BTW, learning Chinese [they don't specify which type] might not be a bad idea.

    The above examples, amongst many similar or even more confusing, show that there is no consistent use of the namespace by trademark holders, certainly not in comparison to consistent use of the term sucks. If the trademark lobby has a problem with that perhaps the fault lies with them for not coming up with a consistent standard (or lobbying for a single, or even multiple, TLDs which are only open to TM holders, thus assuring the consumer that it is the genuine article). ICANN should also move quickly on allowing a .sucks domain which doesn't allow defensive registrations, particularily if some companies wish to assert their presumed right to a character string, even mis-spelled or with epithets added to it, across most all TLDs. While I understand that trademark holders, and even consumers, want trade names protected, they aren't character strings with magical powers. I suspect the term sucks is used more often per day than even McDonald's or Coca~Cola, though they may sometimes be used in concert. :) I think it is sucks that deserves to be considered the operative word, not some trademark name, no matter how well known. -g

    Re: apples & orchards
    by fnord (d_d@email.com) on Wednesday December 12, @04:06AM (#4059)
    User #2810 Info
    Anon writes:
    Should trademark owners win sucks decisions? Probably not. But if a squatter registers a sucks address and sells products on the site instead of protesting the company, then the trademark owner should be able to shut the site down.
    I'm saying the same thing so in general I agree with that, though each case needs to be looked at individually. -g
    Re: PhillipsSucks: WORD
    by freespeechcenter (registry@freespeechcenter.org) on Monday December 10, @02:56AM (#4039)
    User #3147 Info | http://www.freespeechcenter.org
    Thank you for your opinion. With regard to the term "sucks," the logic of the World Intellectual Property Organization (WIPO) is specious and fallacious and not supported by any evidence, only the conjecture of the WIPO panel. To the contrary, the word "sucks" has entered the idiom of every language of the Internet. In a future U.S. District Court challenge to a WIPO UDRP decision, the Free Speech Center, will produce the expert testimony of a noted linguist to support the contention that "sucks" is universally understood as a critical term of protest among all Internet users regardless of their native language.
    Re: PhillipsSucks: WORD
    by mjrippon on Monday December 10, @03:43AM (#4040)
    User #2960 Info
    >To the contrary, the word "sucks" has entered >the idiom of every language of the Internet.

    Has it bollocks. I suppose at the Free Speech Centre you have native speakers of every language in the world have you? I don't think even the United Nations itself can boast that.

    BTW: sounds like you're going to be fighting an awful lot of litigation...
    Re: THE SOLUTION TO PROTECH INTERNET FREE SPEECH
    by fnord (d_d@email.com) on Sunday December 09, @06:31AM (#4026)
    User #2810 Info
    Freespeechcenter writes:
    The [vivendiuniversalsucks.com and phillipssucks.com] decisions are the seminal rulings...
    These are not seminal rulings. Rulings on *sucks sites have gone both ways. Besides, if you follow the UDRP at all you'll know that there is no such thing as a seminal ruling, arbitrators choose or ignore such precedents as they see fit.

    The UDRP should be scrapped for any number of reasons, using your freedom of speech rights to advertise poconosports.com does nothing to advance that aim. -g

    Re: THE SOLUTION TO PROTECH INTERNET FREE SPEECH
    by freespeechcenter (registry@freespeechcenter.org) on Sunday December 09, @12:09PM (#4027)
    User #3147 Info | http://www.freespeechcenter.org
    Thank you for you opinion. However, if you read the posting concerning the synopsis of the white paper: "Protecting Internet Free Speech: The Fact Project," the use of the domain name "poconosports.com" was simply mentioned as an illustrative example of an existing website for which a third level domain as factual counterpoint could be established pursuant to the FACT Project.
    Re: THE SOLUTION TO PROTECH INTERNET FREE SPEECH
    by fnord (d_d@email.com) on Sunday December 09, @04:58PM (#4028)
    User #2810 Info
    Uh huh. One could as easily have used example.com or icannwatch.org if one wanted an illustrative example. Is the white paper Protecting Internet Free Speech: The Fact Project actually available anywhere? I trust that FACT (First Amendment Computer Technology) is only accidentally confusing with the First Amendment Cyber-Tribune.

    Your poconosports.com and freespeechcenter.com, both registered less than a week ago (let me scoop dtobias and ask, why didn't you register and use .org's?) seem a strange fit. Why would anyone take seriously a free speech center that is a division of a sports club, even assuming that sports club actually exists? If you're not careful, you might be mistaken for one of the members of another group. -g

    Re: THE SOLUTION TO PROTECT INTERNET FREE SPEECH
    by freespeechcenter (registry@freespeechcenter.org) on Monday December 10, @12:25AM (#4033)
    User #3147 Info | http://www.freespeechcenter.org
    Thank you for your opinions; however, it does appear that you have an "axe to grind" for either an interest supportive of the World Intellectual Property Organization (WIPO) and adverse to those toiling in the grassroots movement to preserve and protect Internet free speech, or perhaps you are affiliated with Neulevel, Inc., the corporation that has been subject to the legal advocacy of the Pocono Sports Club's founder in response to the widespread consumer fraud that existed with the launch of the .biz top level domain as documented in the media by MSNBC. The white paper, "Protecting Internet Free Speech: The Fact Project" in its entirety will soon be available to the Internet community on the web site under construction at www.freespeechcenter.com. Additionally, in response to your inquiry, the acronym "FACT" in the phrase "FACT Project" was the suggestion of an eighth grade school student, and it was innocently selected without awareness of the "First Amendment Cyber-Tribune;" however, the name of the "project" would be changed, in light of your observation, should the editor of the First Amendment Cyber-Tribune, have any objections whatsoever to the term "FACT Project."

    The second-level Internet domain names that you mention were purchased only recently pursuant to an operational plan of the Pocono Sports Club in response to the recent issuance by the World Intellectual Property Organization (WIPO) of the two rulings cited in the synopsis of the white paper. As you could confirm with the Secretary of State for the Commonwealth of Pennsylvania, "Pocono Sports Club," was formally registered on February 22, 2001.

    The choice of .com versus .org with regard to the top level domains was made because it is a well-known fact that most individuals searching for a webpage usually begin their search with a uniform resource locator (URL) containing the .com top level domain name regardless of the organizational structure of the website's publisher.

    With regard to your inquiry as to our organizational structure, there is a definitive practical link between the promotion of amateur international sport and human rights. To the Pocono Sports Club, Internet free speech is an international, human rights issue. See Article 19, United Nations, Universal Declaration of Human Rights quoted in the synopsis of the white paper. If individuals such as yourself would judge us negatively by our organizational structure rather than our advocacy work, so be it.

    With regard to the insinuation that closes your posting, NO member of the Pocono Sports Club is affiliated or associated with any of the individuals or groups mentioned on the webpage to which you link. Thanks again for your inquiry.

    Re: THE SOLUTION TO PROTECT INTERNET FREE SPEECH
    by fnord (d_d@email.com) on Monday December 10, @08:06AM (#4044)
    User #2810 Info
    I am in no way affiliated with WIPO or NeuLevel. I have been consistently, if not perceptively, critical of both WIPO and NeuLevel. You need look no further than my prior posts to ICANNWatch for ample evidence.

    It is my opinion that using your freespeechcenter.com site as an eBay redirect is a mistake. Likewise registering and using the .com rather than the .org (there's no law against using both) is a mistake, or perhaps the .com isn't if it is an eBay redirect. The definitive practical link between the promotion of international amateur sport and human rights escapes me, if anything the former is a subset of the latter, not the other way around. The insinuation I was making was that you are in danger of being thought another in a long line of net.kooks, or their sockpuppets, who seem drawn to ICANN issues like moths to a flame. You won't be taken seriously by those who support the ICANN status quo, or by those who oppose it, which won't leave you much company. As W. C. Fields said: if fifty people tell you you're drunk, you'd better find some place to lie down. -g

    Re: THE SOLUTION TO PROTECT INTERNET FREE SPEECH
    by freespeechcenter (registry@freespeechcenter.org) on Tuesday December 11, @11:11AM (#4054)
    User #3147 Info | http://www.freespeechcenter.org
    Thank you for your opinion. Firstly, as indicated in the "FACT Project" white paper synopsis, the website for the Free Speech Center that will appear at the domain name freespeechcenter.com is under construction; therefore, I fail to grasp the substance of your observation that a website which has not yet been published is an "ebay redirect." Secondly, we have a difference of opinion with regard to the relative value of a .org top level domain name for any Internet website. With regard to your closing opinions about "kooks," "puppets," "moths," and "drunks," I am reminded of a quote that I heard initially while serving as a corpsman with a Marine Corps rifle company, "opinions are like assholes, everybody has one." Thank you for your opinions. EH
    Re: THE SOLUTION TO PROTECT INTERNET FREE SPEECH
    by fnord (d_d@email.com) on Tuesday December 11, @01:27PM (#4055)
    User #2810 Info
    I didn't use the pejorative terms about you, I suggested that you were in danger of earning them. OTOH, you implied I was an agent of WIPO or NeuLevel. Frankly, I'd rather be considered a drunken kooky moth puppet. Your website has been published, what's more it included a link to ebay when I first visited. I see it now has a register.com 'coming soon' page. Very gauche if I may say so. Speaking of which, the same page informs me that freespeechcentre.com is still available, you may want to snap that up if you intend to bill yourself as having international reach. Regarding the relative worth of .org, that depends on whether it is for sale, or whether one wishes to appear a true non-profit, or whether one wishes to be found throughout various TLDs, and no doubt there are other factors. ICANNWatch for example can be found by that name in .com .net and .org. You don't seem to be too aware of some of these concepts, therefore claiming to have the solution to protect internet free speech is a tad suspect.

    FYI, here's an opinion on these two cases from an Australian barrister. -g

    Is the Internet "International"?
    by Muhhk on Sunday December 09, @10:53PM (#4032)
    User #3085 Info
    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.
    Re: Is the Internet
    by fnord (d_d@email.com) on Monday December 10, @04:15AM (#4042)
    User #2810 Info
    Which Rochdale or Rocadale and which co-op movement? -g
    Free Speech My Arse
    by mjrippon on Monday December 10, @04:06AM (#4041)
    User #2960 Info

    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

    Re: Afilias Limited is an Irish Limited Company
    by fnord (d_d@email.com) on Tuesday December 11, @04:17AM (#4052)
    User #2810 Info
    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
    Fair.com? Professor Geist's Analysis of UDRP Unfai
    by freespeechcenter (registry@freespeechcenter.org) on Wednesday December 12, @04:26AM (#4060)
    User #3147 Info | http://www.freespeechcenter.org
    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
    THE REGISTER (U.K.) ARTICLE OF 12/12/2001 CORINTHI
    by freespeechcenter (registry@freespeechcenter.org) on Thursday December 13, @03:34AM (#4064)
    User #3147 Info | http://www.freespeechcenter.org
    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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