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

    This discussion has been archived.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 mjrippon on Friday July 27 2001, @01:13AM (#1499)
    User #2960 Info
    I don't agree. At the very least, an arbitrator should be able to apply the facts as he finds them to the law (or in this case, the Policy) as it stands. In the Reg Vardy case, the panellist utterly failed to do this. Instead he took accepted facts and applied them to what he thought the policy ought to be.

    In the Reg Vardy decision, the arbitrator found that the site was set up to disrupt the business of the Reg Vardy Group. There can be little question that the site was originally set up to voice the respondent's gripe against Reg Vardy was genuine, and although the respondent did not contribute to the process, the panellist did (as he should) look at the site for himself before reaching his opinion.

    Having accepted that the initial complain is genuine, further consideration is irrelevant. Reg Vardy may not like the fact that the criticism of it is particularly unpleasant, or that the use of it's mark is not distinguished by the use of a "-sucks" suffix. However the fact that the site may be guilty of bad taste does not make it's proprieter guilty of bad faith. And the use or otherwise of an appropriate distinguishing feature in the domain name is not a bad faith consideration at all.

    In this case the panellist stated:

    "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."

    Well this may be the Panel's view, but it isn't the UDRP's view. If those that drafted the Policy intended to include amongst the definition of bad faith all those who seek to disrupt another's business, they wouldn't have used the words "for the purpose of disrupting the business of a competitor". It's not like it would have been difficult to draft it differently.

    Most of the trouble with the UDRP isn't with the Policy itself, it's with it's interpretation by panellists who have to answer for their decisions to noone. All we need is a public appeals process and this problem will disappear.
    [ Reply to This | Parent ]
    Re: WIPO Arbitrator Says Criticism=Bad Faith by mjrippon
    Re: WIPO Arbitrator Says Criticism=Bad Faith
    by mjrippon on Thursday August 02 2001, @04:33AM (#1570)
    User #2960 Info
    Yes, but I wouldn't hold your breath - WIPO considered appeals in the First Report of the WIPO Internet Domain Name Process and they came to the conclusion that...

    "As the administrative procedure in any event would allow the parties to resort to the national courts after the issuance of a determination, an appeal process would be redundant and unnecessarily complicated for a procedure that is meant to be as streamlined and efficient as possible."

    So if you can afford it, you can appeal by issuing proceedings, which is good for the likes of me, but for the schoolkid who runs her website from her bedroom, not so good. An appeals procedure of sorts exists for UK ccTLDs, so what's the diff? It seems WIPO has no plans to reconsider this in its second report.
    [ Reply to This | Parent ]
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