A Very Interesting Lawsuit
Date: Friday January 04 2002, @09:12AM
Topic: Uniform Dispute Resolution Policy (UDRP)

Eric Bord doesn't look much like a cybersquatter. In fact, he used to be an advisor to Jimmy Carter. The worst you could call him is a small-time speculator in a handful of generic Spanish domain names. That didn't impress a UDRP panel, which found against him 2-1 regarding the somewhat generic name "bancochile.com" (Chilean bank), and awarded it to the Banco de Chile. The decision elicited a stinging dissent from the third panelist, who said it "compounds some of the most egregious errors committed in the name of the UDRP."

Now Mr. Bord is striking back in U.S. District court in a lawsuit naming both Banco de Chile and the US Dept. of Commerce. His lawyer, Jonathan Bender, kindly provided us with an HTML copy of the amended complaint. It makes quite interesting reading, as its narrative and eight counts raise a fusillade of major challenges to the UDRP in general and the conduct of this case in particular:

The eight claims, some of them inconsistent with others and pleaded in the alternative (a standard practice under US law) are:

  1. That the Department of Commerce (DoC), acting via ICANN, illegally promulgated the UDRP.
  2. That if DoC didn't promulgate the UDRP it illegally delegated to ICANN the authority to do so.
  3. That the requirement of consent to the UDRP violates the Administrative Dispute Resolution Act (ADRA), 5 U.S.C. 575(a)(3).
  4. That under Anticybersquatting Consumer Protection Act (ACPA), Mr. Bord is entitled to a declaration that he is not a cybersquatter.
  5. That Banco de Chile was guilty of abuse of process for how it handled the UDRP proceeding.
  6. That Banco de Chile committed tortious interference with prospective business advantage
  7. Slander of Title
  8. That the UDRP is legally void because it is an unconscionably one-sided agreement.
The last claim is especially interesting, as I believe this may be the first time this claim has been raised in a US Court -- or perhaps anywhere. I think there well may be something to it.

Mr. Bender asks that we "please let your readers know that I'd appreciate hearing from any attorneys who might wish to join the cause and from anybody else who might have useful information regarding the case."

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Re: A Very Interesting Lawsuit
by fnord (groy2kNO@SPAMyahoo.com) on Monday January 07 2002, @10:30PM (#4517)
User #2810 Info
This case certainly raises interesting challenges, but it is too bad it is over such a name. Banco and Chile may be generic and not easily trademarked (forgetting GAC for a minute) terms on their own, put together that is less true. For that matter, so are Bank and America, if some Chilean had registered bankamerica they'd probably lose it too, and it is unlikely a Chilean court would give it back, never mind that Chile is in the Americas. Bankamerica.com, not surprisingly, takes one to bankofamerica.com.

I just can't get too worked up over this one, if Mr. Bord understands business and Spanish and domain names at all, he should have known he might be in for some trouble, and if he can afford a lawyer now perhaps he should have run this business plan past a knowledgeable lawyer in the first place. The fact that he now finds himself in this situation doesn't inspire much confidence that his running of some unspecified future business at this address would have been successful, even back in the last century when making money online seemed doable. For example, if one was intending to set up a site to allow Chileans to bank online, or even a site about Chilean banks, or banking in Chile, it seems unlikely it would be of much use if its proprietor (particularily given his apparent areas of expertise) did not know, did not attempt to find out, and could not even infer, that there might be problems with the name.

My pessimism has nothing to do with the merits of his claims, I'd like to see these issues adjudicated, some of them are long overdue for a proper hearing, and in a perfect world my above concerns wouldn't color the judgement. But, like some of the *sucks cases, it seems the UDRP decisions most in need of judicial review don't make it to court, whereas those that do are on somewhat shaky ground. I remain convinced that an impartial US court, given the right case and the right pleadings, would kick the stuffing out of the UDRP, and perhaps slap ICANN around as well. But IANAL and this isn't a perfect world. -g

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Re: A Very Interesting Lawsuit
by michael (froomkin@lawUNSPAM.tm) on Friday January 04 2002, @04:37PM (#4491)
User #4 Info | http://www.discourse.net/
1) That's "Michael" please.

2) While there are a number of substantial, perhaps even dispositive, differences, I think the recent case of Penn v. Ryan's Family Steak Houses, Inc., 269 F.3d 753 (CA 7 2001), in the 7th Circuit court of appeals is at least suggestive of the type of approach one might expect a court to take. If the plaintiff were able to prove that there is a financial incentive for arbitration service providers to compete for plaintiff's business by being pro-plaintiff -- whether or not they actually did so -- then I think this might suffice to make the contract unconscionable under the laws of many and maybe even most or all states.

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