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    Talk about Bad Faith... | Log in/Create an Account | Top | 14 comments | Search Discussion
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    Re: Talk about Bad Faith...
    by fnord (groy2kNO@SPAMyahoo.com) on Sunday January 27 2002, @07:42PM (#4748)
    User #2810 Info
    Anon was talking about what I call a poster kid, and a poor one at that. I can't stand the UDRP, it needs major modifications or should be chucked out entirely, but some of the cases given on ICANNWatch as examples of bad UDRP or court decisions exasperate me. If this case, or bookstoremanager.com (where the Respondent, a competitor to the Complainant, stated he'd registered the name to annoy the Complainant), or vivendiuniversalsucks.com, or bancochile.com are the worst that is happening, I don't think most impartial observers would shed a tear. For examples to get your dander up check out the stories of nissan.com, or unicom.com. Admittedly those aren't UDRP cases, but surely there's been no shortage of more horrid UDRP decisions than geac.net

    I'll try to explain my reasoning once more. First, while the Respondent may offer services to the Complainant's customers, that does not automatically mean that the Respondent has rights to the Complainant's actual name (and I can't see how anyone could argue that they have superior rights). For example, if I am a licensed Coca-Cola Bottler, or licensed Microsoft Engineer, or licensed Nissan Mechanic, I can presumably make some proscribed use of their relevant trademarked names, but I doubt I'd get away with registering and keeping coca-cola.net, or microsoft.net, or nissan.net, nor do I think I should, short of it also being my name. :) I imagine I'd also be in danger of losing my licensing. coca-cola-bottler.net or microsoft-engineer.net or nissan-mechanic.net is a different issue, as would be geac-servicer.net, but that (or similar) wasn't the name they were going by. What's more there was no evidence presented by either party that the Respondent was licensed by the Complainant or was authorized to use the Complainant's trademarked name in any fashion. Indeed, the Respondent admits being independent via the website it claimed didn't exist.

    Second, as I've already pointed out, the Respondent stated that it is a competitor to the Complainant, in my other examples if I was taking business away from Coca-Cola, Microsoft, or Nissan, then surely they have the right to protect their marks from being used to compete with them. I'm not in favor of granting trademark owners huge and increasing rights, but if they don't have that one, they don't have much at all.

    Third, while there seems to have been a problem with evidence of an actual website operated by the Respondent as submitted by the Complainant on CD-ROM (perhaps because the website used a redirect), the majority of the panel was willing to accept sworn statements that a website had existed at that address. Although the Respondent denied its existence, as has subsequently been pointed out here, a search at archive.org has shown that the site did in fact exist. If a majority of the panel had gone the other way the Complainant could have subsequently used the Wayback machine to have the case re-heard (or perhaps taken it to court) due to that new material fact coming to light and that might well have resulted in the name being transferred anyway.

    Talk about bad faith, if the Respondent was willing to lie to the panel on that critical fact, how much credence should be given to their case? And how much sympathetic publicity? I'd say not much at all. -g

    [ Reply to This | Parent ]
    Re: Talk about Bad Faith... by fnord


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