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Barcelona.com Decision Reversed on Appeal
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...about lauding this opinion is that it is a tremendous waste of time and energy to have to have gone so far in order to obtain the no-brainer decision which WIPO should have rendered in the first instance, and which every other purely "geographic name" UDRP case has held.
It does not, as some have suggested, eviscerate application of the UDRP to cross-border disputes. Many correctly-losing respondents will not have the inclination to follow up with litigation.
The court makes clear that by choosing the UDRP, and choosing the UDRP 4(k) jurisdiction, the city ultimately controlled the fact that a US court would have a final say in this matter. The question is, "Why didn't they sue in Spain". Well, they didn't sue in Spain because, despite some bizarre comments by the city's supporters, they knew darn well they wouldn't win there either.
If they believe otherwise then, presuming the lower court orders the name restored, they are STILL free to sue in Spain.
The most gratifying aspect of the decision was the culmination of the efforts of a lot of people in cases such as strick.com, cello.com, and corinthians.com, to finally get a court to point to a section of the Lanham Act and call it the "reverse domain name hi-jacking provision".
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Perhaps the Barcelona.com case is the beginning of the end for WIPO and the other arbitration centres that seem to follow WIPO's path. The decision has finally backfired to WIPO for the way it was approached. The fact that the appelate court decided to send it back to the lower court seems that the Court of Appeal did not even consider the case as an appeal; instead it affirms its importance by adding the geographical indications should not be brought as trademark infringement because geographical names can simply not be trademarked.
Hopefully WIPO and the rest will realise that their decisions do not only misapply the UDRP rules, but what is worse they violate basic and fundamental principles of trademark law and not only.
Let the games begin.
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