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Fair Domain-Dispute Arbitration Firm Quits the Business 98

Posted by michael from the cheaters-prosper dept.
fwc writes: "According to this Newsbytes story, EResolution has decided to quit the Domain Name Dispute-Resolution business because its reputation for being fair has driven away its potential customers - the trademark holders who are filing the complaints. Apparently (and understandably) the trademark holders prefer to use those arbitrators who find for the trademark holder most of the time. Perhaps it is time for ICANN to rethink their policy."
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Fair Domain-Dispute Arbitration Firm Quits the Business More

Fair Domain-Dispute Arbitration Firm Quits the Business

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  • Not a great business model then is it? (Score:3, Funny)

    by Mike Connell ( 81274 ) on Wednesday December 05, 2001 @08:46AM (#2659223) Homepage
    I hear that the founders are starting up a new company: the "Our premiums are really low because we *never* pay out" insurance company ;-)

  • i c a n n . B l o g (Score:3, Interesting)

    by webword ( 82711 ) on Wednesday December 05, 2001 @08:49AM (#2659231) Homepage
    While we are on the topic of ICANN...

    Here is the ICANN weblog. [lextext.com]

    ...it is about 1 year old.
  • There be only ONE organization to settle these things, and that ONE organization should be a fair one... ok, Ill wake up from my dream now...
    • Even if there is only one resolution organization, you'll have different people involved in that organization that may have different attitudes on trademarks and the like. IIRC, a statistical summary of DNS rulings from about 6 to 10 months ago certainly indicated that 2 resolution organizations were trademark-friendly, but even more so, certain people in those organizations were more opt to go with trademark owners than others. Now, sure, just like most US courts, the selection of exactly whom is on the resolution committee is random from a pool from that organization, but there's no way to iron out the biases of individaul members.

      • Well, hopefully by having such a random selection you would get a more balanced organization. Of course there would always be some trade-mark friendly ones, but there would also be anti-trademark ones and the rare impartial ones.

        By having only one organization, trademark holders can't shop around for the friendliest one. They are forced to go to one organization, which may or may not be friendly to their needs.

        Also, let's say that this solo orgainization is trademark friendly. It may not stay that way as members come and go (mostly randomly). So there could be runs of pro- and anti-trademark rulings, but the trademark holder could never be sure which they were going to get. This contrasts with the current system, where trademark owners know there are certain places they can go for a friendly ruling.

        No solution is perfect, but this announcement certainly shows that the current one doesn't work. IMHO, a single arbitration orgainzation would be the best solution.

        That's just the way I see it,

    • Re:why are there more than one involved? (Score:4, Informative)

      by CaptJay ( 126575 ) on Wednesday December 05, 2001 @09:06AM (#2659297) Homepage
      The actual reason there are multiple organizations to serve as arbiters was to try to balance the system in more fairness. The obvious question is fairness to whom, and I think the answer is pretty obvious: those who have the money and pay for this "service".

      As far as I'm concerned, if someone wants to have a domain which I payed for, they should have to come here in front of a judge in MY jurisdiction and argue that it is theirs. Therefore if I disagree, I have means to appeal, and so on.

      We have enough trouble keeping a sane justice system, let alone parrallel ones funded by plaintiffs...
      • well they should be completely independent, and funded by a fee tacked onto the purchase, renewal, and transfer of domain names...
        • Probably wouldn't stop 'bonuses' going to those that favour the trademark owners no matter how screwed up their claims might be. Manilla envelopes stuffed with cash, that sort of thing.
        • Trademark law varies slightly from country to country. Having a parrallel "justice" for domain names is silly: the different countries already have a justice system for this kind of disputes, that is (in theory) completely objective and funded independantly (usually the losing party pays part of the court fees as well).

          Using a different "justice" for trademark enforcement over domain names is asking for abuse, and imposing one view of trademark law over the one that prevails in the defending party's country. I'm expected to know the law of my country (which in itself is a debatable demand considering the sheer size of legislation), am I now also expected to foresee how an international arbitrator will interpret the policy he is enforcing to keep what I bought?
    • "One organization to rule them all One organization to find them, One organization to bring them all And in the darkness bind them.
  • It's the same thing with legal proceedings in situations where corporations can choose where they take place (i.e., judges who are known to rule a certain way. The bottom line is that one cannot expect businesses to do anything contrary to their own advantage, because the system in which they operate is of that mentality.
    • Is this blatently allowed? Remember when Rambus was reprimanded for "Judge Shopping". [slashdot.org]

      • I agree that it's not really allowed, but that doesn't mean it doesn't happen...

      • It happens a lot more when it comes to arbitration. In all sorts of goods and (especially) service contracts, the fine print includes provisions for binding arbitration to settle disputes, instead of litigation. You see them a lot in doctor/dentist-patient agreements, financial services, and many other agency situations, like getting your house sold or repaired, etc. It's cropping up a lot in sales of goods, too - especially high cost items.

        Binding arbitration can offer some advantages to litigation, in terms of speed and efficiency, but just as with domain name disputes, the deck often gets stacked. Most of that fine print lets the person who wrote it choose the arbitrator, choose the location for the arbitration (wherever the company's counsel is located, often a plane flight away from where you are), and even the rules for the arbitration. Now, many times these are ostensibly neutral - the arbitrator and rules are adopted from the standards set for by the American Arbitration Association - but the location for the hearing is rarely convenient for the non-drafting party (i.e., you).

        The subtler problem is what you see here with domain name disputes. Arbitration firms aren't stupid, they know who butters their bread. If their firm has handled 200 arbitration cases from a particular HMO in the past, and that HMO comes before them yet again with a malpractice dispute, it's entirely possible they are going to feel just a -hint- of pressure to avoid a ruling that pisses off their repeat customers, even though both sides are splitting the fee, in a display of "fairness."

        Privitizing justice runs the risk of selling it to the highest bidder, whether it's domain names or medical malpractice. Many mediators and arbitrators are entirely fair - or at least think they are. But there's a reason that extra-judicial dispute resolution is getting increasingly popular among those that are usually on the "defendant" side of the dispute.

  • At least the can get their's (Score:4, Insightful)

    by satanami69 ( 209636 ) on Wednesday December 05, 2001 @08:57AM (#2659262) Homepage
    eResolution v. eResolution.com [wipo.int] There is nothing in the spirit or substance of American law that could ever justify the expropriation of one person's rightful property in order to transfer ownership to some other person, based on the argument that the original owner had not yet "done anything" with his property other than simply holding it, whereas the other person has intentions and/or plans to put that property to some commercial use.
    • That's not exactly true when it comes to intellectual property. Companies can effectively lose trademarks by not enforcing them; "Aspirin" jumps to mind. Also, one can lose an FCC license by failure to construct faclities or use the frequencies. True, it is a licensing issue, but it has a lot of parallels.
      • > That's not exactly true when it comes to intellectual property. Companies can effectively lose trademarks by not enforcing them; "Aspirin" jumps to mind.

        Aspirin was a Bayer tradmark. Bayer was/is a German company. After WWII we took aspirin from them. Spoils of war.

        ObHistory: Bayer also trademarked the brand name Heroin after they invented diacetylmorphine. The "in" drug name ending at the time was "in".

    • Re:At least the can get their's (Score:4, Insightful)

      by Stiletto ( 12066 ) on Wednesday December 05, 2001 @09:18AM (#2659344)

      You know, I've never looked at ICANN's rules until I browsed that link you just posted. The case seems pretty straightforward to me. A cyber-squatter got squashed.

      Paragraph 4(c), which the "respondant" can use to defend the domain name, seems pretty easy to satisfy:

      (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

      (ii) you (as an individual, business or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

      (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

      Note that this is a logical-OR. If you can claim any of the above you get to keep your domain. This guy didn't fall under any of the categories.

      I must admit though, I don't like the terms "bona fide" or "legitimate" in the rules. It would be nice if they could define what a "bona fide offering of goods" is or what "legitimate noncommercial use" means. Maybe they do in another portion of the rules--I didn't read that far :-)
    • Yes there is. Congressional land grants in the 1800s were dependent on your improving the land. If you didn't improve the land, you didn't get to keep the land. So you go to the registrar (Congress) and request your domain name (parcel of land). You receive it and don't post any actualy content (build structures / farm the land). You lose the domain (the land grant).

      This was also the legal justification for taking lands from the American natives - they had not improved the land. They had a Biblical imperative to farm or work the land; since they weren't doing so, they had no right to the land.

      I am a firm believer in the principle that if you don't use a scarce resource to benefit everyone, and if someone else will, then they should be the owner. Property ownership is not natural; it is the product of the laws of our civilization. The laws should benefit everyone and not a select few individuals.
      • You know, there are ports other than 80 and protocols other than HTTP. Just because somebody isn't offering HTTP on port 80 at www.domain.tld doesn't mean the domain isn't being used.
        • You're goddamn right! What I mostly see on the absurd cases that show up on Slashdot once in a while is that the arbitrators' way of finding out if the person is using the domain is going to www.domain.com. Doesn't exist? Under construction? Oops! ALERT! ALERT! BAD FAITH! (they love using this expression.)

          eResolution's case seems very fair, though. But LOTS of ridiculous cases have passed thru the dirty unfair hands of WIPO.
    • Actually I think that's the basic argument for "Manifest Destiny", and that was used to justify the taking of property and indeed a good many lives.
  • and another for the Poor.

    And this suprises us how ?

    Welcome to freedom by cheque book.
    • ... it comes out OK for the "little" guy. My fave was the one during the last UK general election when www.williamhague.com [williamhague.com] got disputed (I advise you not to look at the actual content). IIRC William Hague (the naturist) won because he had been running the site for ages before William Hague [conservatives.com] (the politician) got elected leader of the Conservative party. There's nothing they could do about it.

      Mind you, I'm not sure the result would've been much different if the naturist guy had stood instead. All OK now as they've got a completely different slaphead nonentity in charge now.
      • You know that's the sort of example a corrupt organization would pull out of it's butt to show everybody thier fair, and then screw everybody else when thier not looking...

        We're not happy with seeing it happen everyonce in a while. We want one fair and consistant law that applies to everybody equally.

        Wasn't this all started to keep cybersquatters from extorting companies??? How hard can it be to prove someone is a cybersquatter anyway???
        • Interesting example of a "corrupt organisation". Seems to fit though (Archer, Hamilton etc.)

          It seems like it's OK if it's your real name (like Wiliam Hague the naturist). If that were true, you could change your name to anything, then letgitmately register the domain. Not sure how it would hold up though. There was one guy in the UK who, (after being charged £10 by Yorkshire Bank for sending him a letter telling him he was £2.50 overdrawn) changed his name by deed poll (dunno what it's called in the US) to Mr. YorkshireBankPlcAreFascistBastards, then demanded that they issue him with a new chequebook (that's checkbook to you) etc. Wonder if he ever thought of registering the domain.

          PS Sorry for those of you who can't pick up pound signs.
          PPS The bank did issue him with new stuff, then closed his account.

  • The .es Domain (Score:2, Interesting)

    by YearOfTheDragon ( 527417 )
    The Spanish(.es) solution to domain names isn't very good.

    "Only the following regular domain names will be assigned:
    a) The full organisation name as it appears in its deed or constitution document.
    b) An acronym of the full name of the organisation qualified ...
    c) One or more trade names or legally registered trademarks as they appear in the register of the Spanish Office ..."
    Complete text can be found here [www.nic.es].

    There aren't discusion about domains.
    But there isn't any freedom.
    If I want to register the domain "YearOfTheDragon.ES" I need to get the Trademark.
    Do it Happens in other countries?
    • Yes, the Spanish system is especially crap, and demonstrates that there is actually a lot of good in the "first come, first served" method of .com assignment.

      One of the great failings of the Spanish system is that you have to be a registered company to get a .es domain name, and there is a lot of red tape to jump through to set up a company. Even with expensive lawers, it can still take a month, and then another few weeks until your registration is approved, and you need a minimum capital (about $3000) to start a company.

      Compare this to the UK where you can buy an off-the-shelf company in 24hrs for about $150 and get the domain name the same day.
      • If they created subdomains, such as .com.es, .edu.es, etc. then they would be able to have different rules on the sort of domain name you were wishing to register. For example a company name would have to use the .com.es domain and then have to follow those rules. Eductional insituations would have to use the .edu.es domain and follow the specific rules for that domain. An individual would have to use the .person.es domain and follow a first come first served basis. Of course the sub-domains, .com.es, .person.es would use the proper spanish terminology, but not speaking spanish I can't suggest the appropriate tranaslation. Whether it would work out to be any better in the long run ramains to be seen, but this is an approach which would cater to different types of entities wishing to have a domain name.
        • If they created subdomains, such as .com.es, .edu.es, etc. then they would be able to have different rules on the sort of domain name you were wishing to register. For example a company name would have to use the .com.es domain and then have to follow those rules.

          Which are actually a fairly decent set of rules

          Eductional insituations would have to use the .edu.es domain and follow the specific rules for that domain. An individual would have to use the .person.es domain and follow a first come first served basis.

          You'd still need some rules. e.g. person could only use their own name or produce documentation showing they had authority to use someone elses...
    • Damn, and I really wanted to register cojon.es...
    • The system is very much the same in Finland (.fi). I find it a sensible solution regarding to strictly national TLDs. Would you want a domain like ho-give-me-a-quickie.us? The two-letter country code is like a national flag and needs more respect -- this way there's some level of screening beforhand. On the other hand there's a place for generic TLDs -- among others .com :-) -- where you can register on a first come first serve basis. For legitimate non-profit purposes I would also advocate a system of (national) light-weight trademarks, available with a small (couple of hundred Euros) registration fee.
      • I find it a sensible solution regarding to strictly national TLDs

        I don't think it is sensible at all. What is sensible is to have a second level domains at the country level. They have this in the UK, so that, for instance,

        company.ltd.uk

        must be a registered, limited, company, but (as far as I am aware)

        whatever.co.uk

        can be registered by anyone.

        Spain doesn't have this second level and is very restrictive about who can have domain names. It might, as you say, give "respect for the national flag", but I don't think it does much good for the new economy of Spain.
    • I believe the Brazilian system sucks even more. FAPESP [fapesp.br], a research institute that manages our sole registry [registro.br], requires you to actually prove you own a company before you can register a domain. You have to give them the numbers. But then, when you whois a domain, you discover its owner is a grocery store, for instance.

      But there's more! There's the stupid Internet Managing Committee [cg.org.br], that is a government committee (don't get fooled by that .org.br!) that harasses Brazilian users that care about their freedom with its decisions.

      Bah.

  • WHAT?! (Score:5, Insightful)

    by The Smith ( 305645 ) on Wednesday December 05, 2001 @09:05AM (#2659291) Homepage
    From the article:
    The firm, one of four accredited under ICANN's Uniform Domain-Name Dispute Resolution Policy (UDRP), said that the policy under which
    those filing complaints get to choose the arbitrator encourages businesses to seek out the referee they believe is most likely to see domain-name holders as cybersquatters. [my emphasis]
    I don't believe it: the plaintiff actually gets to choose which arbitrator will try the case, and the defendant has no say! This is like the MPAA being allowed to select which `justice' they want to try their court cases.

    Hey, wait a minute...

    • Re:WHAT?! (Score:2, Informative)

      by ethereal ( 13958 )

      I believe you can still take the matter to court if arbitration doesn't work out the way you like, though. The arbitration is just offered as an option since sometimes it turns out to be cheaper. The moral for the little guy in these cases seems to be: either go to court immediately to defend your domain, or else cave right away. Arbitration will just suck up time and money that you don't have.

      • Nope. The arbitration is binding.

        The only option that even vaguely favors the defendant is to opt for a three judge panel, in which the plaintiff appoints one judge, the defendant appoints another, and the third is "randomly" selected by the registrar. However, three judge panels are significantly more expensive (>3x IIRC) and much more of the financial burden falls on the defendant. They do, however, have a much more balanced average outcome (I don't have exact figures to hand).
    • The filing party _always_ gets to chose the arbiter. Haven't you ever signed a contract, lease, rental agreement, or loan app. of some sort. There is almost always a clause that you agree any dispute will be settled by arbitration and the arbiter will be ...
      • Yes, but domain name disputes don't involve a contract between the plaintiff and the defendant! They are basically a minature lawsuit to hopefully avoid the hassle and expense of resorting to the real thing. In a lawsuit, of course, the arbitrator (judge) is chosen at random.

        If you do want to view this as a contract, think of it as a contract between the domain name holder and ICANN. This contract, for some reason, states that anyone claiming your domain name will have their case heard by the plaintiff's choice of 4 arbiters.

        Why it says this I can't imagine. It does bias things heavily in favour of the plaintiff by allowing them to choose the arbiter which tends to favour trademark holders -- WIPO.

        IMHO, domain names should only be forcibly transferred if:

        1. The holder is using the name for purposes which could reasonably cause confusion with the TM-holder, OR
        2. The holder has no reason whatsoever to have the name, while the plaintiff has every reason, OR
        3. The holder is not using the name for anything.
        And if a forced transfer takes place, the loser should have what remains of their registration period refunded.
        • First of all these disputes have Complaintants and Respondants

          You are coorect that no contract needs to exist between these parties before the complaint, but if you search you will find that one often does. In any case, the contract that gives authority in these cases is the one between the Registrar and the Registrant. These contracts stipulate that you agree to ICANN's rules for resolving disputes.

          Everyone seems to be hung up on the fact that the Complaintant gets to pick the arbitrator, who cares? Would it be more fair if the respondant got to pick the arbitrator? Or if they were randomly selected from a rotating pool? The answer is it wouldn't matter. Even this "fairest" arbitrator only decided in favor of the "little guy" less than 40% of the time. If you actually look at these disputes most of the time the trademark holder is right, there have been very few cases (etoy and nissan computers come to mind) where the current holder actually has a legitamate claim to the name, and most of these cases involve lengthy legal battles instead of simple arbitration.

          IMHO, domain names should only be forcibly transferred if: The holder is using the name for purposes which could reasonably cause confusion with the TM-holder, OR The holder has no reason whatsoever to have the name, while the plaintiff has every reason, OR The holder is not using the name for anything.

          This is actually very close to the critera used by WIPO to define cybersquatters.

  • Problem with the arbitration system (Score:5, Insightful)

    by fhwang ( 90412 ) on Wednesday December 05, 2001 @09:06AM (#2659295) Homepage
    The biggest problem is that under ICANN rules, only the person filing the complaint has any say as to which arbitrator is selected. The person defending against the complaint has no power whatsoever in deciding who the arbitrator is. So the complainant will pick an arbitrator with a history of favoring complainants.

    Well, duh. Of course if you give only one side the ability to choose the adjudicator, then the odds will be completely skewed. A sixth-grader could design a more fair system.
    • While I think that arbitration is, on paper, a better solution than the "first-come, first-served" approachm with all the domain-squatting that ensued as a result of that. The problem for ICANN seems to be making arbitration work without any possible bias. If either of the two sides in the argument is allowed to choose the judge, then how can the result be anything other than biased? It seems incredibly naive of ICANN to think that anything other could be the case when money (and lawyers) are involved.

      The best way forward might be to log the dispute with ICANN (or some other neutral body) and they randomly assign it to an one of the arbiters on a pro-rata basis. The more resources the arbitrator has the more cases they get. There definately needs to be a process of appeal as well; maybe to a committee of several arbiters whose decision is final.

      • In real life there are plenty of arbitration systems where both parties have a say. Just a quick google search reveals:
        1. The Federal Mediation Conciliation [fmcs.gov] service (which appears to settle labor disputes) takes suggestions from both parties, then picks an arbitrator based on those suggestions.
        2. CAP-MPT [cap-mpt.com] (apparently a malpractice insurer in California) has both parties pick one arbitrator, and then they decide on a neutral arbitrator, and all three choices form an arbitration panel.
        ... and if I can find these on my free-time at work, surely someone at ICANN could've found them, too. Why the ICANN rules are the way they are is beyond me.
    • A sixth-grader could design a more fair system.

      That certainly depends on which sixth grader and whether that sixth grader wants a fair system in the first place if that sixth grader has a stake in the pot. Too many people assume children are innocent little darlings, it certainly isn't a general case. Often, you can give them a chance at chocolate and they'll do anything to get that.
    • > A sixth-grader could design a more fair system.

      Right. Obviously, ICANN doesn't *want* to be fair. Read a bit about ICANN news history (/a bit/ is enough), and you will find that entirely possible.

      Unfortunately, ICANN is empowered by the US gov, which is ruled by Bush... Expect no changes on this front. Only hope are other nations complaining about the US power.

  • I don't know why people are so pissy about all this. ICANN has always been so arbitrary anyways. The Tim Berners-Lee model of the web doesn't need mnemmonic domain names because hostnames are embedded in contextual hyperlinks. Anyone with a persistent (broadband) connection these days can run a root nameserver for their own arbitrary TLDs, and contrary to popular belief: you don't have to sell *everyone* on them, just the ISPs who run DNS caching forwarders for the Hoi Polloi. That's ANOTHER discussion...

    ---Begin Humor---

    Oh, why can't *I* be a household name? Why is an existing multimillion dollar corporation more important than *me*? Why are the brokers of fame always controlling who gets famous or not. Waaaah.
    ---End Humor---
    • I don't get your humor. The issue is that some words belong to the language and were defined prior to a trademark. If this word is not being used within the same industrie to misslead the public then why not on a first come first serve basis. A good example that comes to mind is the word ajax. Which was being used by an ISP on a .NET and the trademark holder of cleaning supplies took them to court.


      WORD is a trademark of MicroSoft and has been used in this comment without permission. If you feel offended please replace WORD with OPEN OFFICE. Thank you for your time.

      • Ajax cleaning supplies (AJAX.NET) and Microsoft (Word) are whining because they want to weasel their product into any use of the word Word or Ajax. It is weaselly of them to take this crap to the courts where less-than-enlightened , where's-my-kickback-underpaid judges issue rulings in favor of their future post-retirement-kickback-perks. I agree it is ethically indefensible.

        However, nobody says you have to use the system that they are dictating. Workable alternatives exist. Be like Internet Protocol (was designed in the beginning) and say "OK, barrier, find another way" and learn to ignore the crap as much as you can.

        Network protocols are VOLUNTARY. You can put whatever numbers into your computer in whatever order you want. If you refuse this, don't whine because you don't like the numbers/order you're told to use.

        PS:
        Slashdot doesn't do HTML Entities, so you'll have to use your imagination for the & stuff...

  • A Canadian firm specializing in arbitration won't be settling any more cybersquatting disputes, saying Friday that its reputation for being fair has driven away the trademark holders who file complaints and thus decide who makes money in that business.

    First off they are Canadians, which is rife with humor all by itself, but I'll say this is good because most of our brothers to the north are very level-headed.
    Good thing to have in an arbitrator.

    Reputation for being fair: Kiss of death for a business, and, once again a "Good thing (tm)" when dealing with an arbitrator.

    Being fair "drives away trademark holders"...does this say anything about the current situation?
    I'm sure copyright holders (RIMPAss's--RIAA/MPAA Ass.--a la the Register) can buy...uh, select the most corrup^H^H^H^H^H easily persuaded judges.

    Maybe I'm too damn tired, and too damn cynical, but this suprises anyone?

    Uh-huh. Ethics in business has about as much of a chance as chastity in a whorehouse.

    IMO, that is.

    .
  • This all needs to be more like MadMax in my opinion. Forget courts and "litigation". If I want to take your domain, trademark or not, we fight to the death and winner takes the domain. If we both lose then it is up for grabs, just like my gold teeth.

    Seriously though, one of the largest problems with litigations surrounding these technological items is that the people in power DO NOT UNDERSTAND TECHNOLOGY. This has been proven time and time again by the US patent office (not that other countries are immune), and time after time. The judge telling Kazaa that it must stop people from transferring files. Does the judge not understand a word in the phrase "Peer to peer"? Now I'm not saying that in this case ICANN is technologically illiterate, they're just a corporate whore who refuses to stand up for the little man. I just wanted to rant on the other subject. ;)

    =Cesaro

    • Comment removed (Score:5, Funny)

      by account_deleted ( 4530225 ) on Wednesday December 05, 2001 @09:38AM (#2659460)
      Comment removed based on user account deletion
      • "The patent office doesn't have to understand the technology. Look, its like this. If they have a question to grant or deny a patent - they typically grant. There policy recently with high-tech concepts/ideas is grant the patent, and let the courts handle the mess."

        It is part of the requirements of their job to understand something about the technology. If they don't, how are they supposed to grant a Patent on it- rubber stamp it? And don't rely on the courts to sort it out- it's not really their job to understand the technology either so they won't know that someone in the USPTO rubber stamped something.

        Somewhere along the time of when the Omnibus Budget Reconciliation Act (ORBA) of 1990 is when things started really going downhill. It was at that point in time that the USPTO started operating more along the lines of a private business (mandated by ORBA) instead of an agency. With them being understaffed for the job, combined with them deriving a good portion of thier budget from Patent grants, etc. it's a recipe for disaster.
    • That used to be part of English common law, it was called "trial by combat". Although it was repealed in England, I've read that it might be possible to petition a judge for trial by combat in some American states, since the legal systems of most states is based on English common law. It would make those Microsoft antitrust cases a lot more interesting :-).
  • Is this the on-line equivalent of that age-old system, of the police choosing judges based on which causes each judge is sympathetic to?

    "Right, we want someone done for having a nuisance dog. Let's take him to Judge X, she was bitten by a dog as a child."
  • Ironically enough, I work for a company that strikes all references to arbitration from the contracts it signs. Why? Because in my industry, arbitrators generally either favor the little guy or live up to the word arbitrary and simply split the difference, regardless of either side's merits.

  • Maybe they should have a Google vote (Score:3, Funny)

    by night_flyer ( 453866 ) on Wednesday December 05, 2001 @09:30AM (#2659408) Homepage
    as to who gets the name....
  • If the foutune 500 companies were smart they would jsut spend a few million and create their own Arbitration company, each pays X amount to keep them operational, they hire their own staff. Guess what, then the companies go to them every single time, because they choose. This way its a guarantee that they will always win.

    They can even save money by sending 'Bob' from the mail room not a lawyer, because no matter what they will always win.

    Don't mind me I just woke up.

  • Sad.... (Score:1)

    by pj7 ( 469369 )
    It's really sad when a company has to go out of business or stop doing somehting because they do their job the right way. It seems the only way to keep afloat anymore is being dirty handed. I'm not a Microsoft basher, but just look at them for christs sake! The more crooked a piece of sh*t you are the further you get.
    I think Lord Helmet said it best "Evil will always triumph becuase good is dumb."
  • We all agree that only an idiot would think up a system where the plaintif can pick which 'arbitrator' they want, that not only encourages judge-shopping but blantently declares it open-season. Let's assume (in our fantasy world) they decide to switch to, for simplicity, a round-robin allocation system. I think it would be nice that if the plaintif appeals to change arbitrator and fails to make a strong enough case, then they get fined a couple of hundred dollars that gets donated to those running free secondary DNS servers. There's a kind of symmetry in justice there that amuses me.

    Phillip.

  • How do you become an arbitrator? (Score:4, Interesting)

    by uucp ( 459917 ) on Wednesday December 05, 2001 @10:54AM (#2659790) Homepage
    I'm not sure that I understand all of this. If the person filing the complaint can choose an arbitrator, then why isn't Slashdot an arbitrator? Or Stallman? Or Lessig? Or an Anonymous Coward?

    Hmmmmm.
    4.f. Selection of Provider [icann.org] The complainant shall select the Provider from among those approved by ICANN by submitting the complaint to that Provider.

    OK. How do you become an approved provider? Well, the Approved Providers list is here [icann.org]. It says: "Additional providers may be approved soon. The above approvals are in effect until further notice at this web page" Nothing on how to become one.

    Anybody have any ideas? I'd like to become a "Provider".
    • No plantif wants to choose a fair arbitrator, they want to choose an arbitrator that goes through the motions but will rationalize the decision for the plantif to get the domain name.

      These guys weren't getting any business because they were truely objective.
      • Hello? Exactly my point.

        Let's get an arbitrator in there that will give me control of the domain cnn.com, because those are my initials, too. Some scum-sucking bottom-feeding arbitrator like WIPO certainly won't work for me, so I can't go there. If there's somebody on my side who's doing the arbitration instead, then I get to own cnn.com.

        Hell, my friend used to be a coke-head. With the right arbitrator he can probably own coke.com. Screw that! I just named my dog "microsoft" so NOW guess what domain I get!

        Ya know, my ex-girlfriend's name was "slashdot"... Maybe... Nah.

  • Why the Lawyer Bashing? (Score:3, Insightful)

    by sbarber ( 98868 ) on Wednesday December 05, 2001 @11:39AM (#2660032) Homepage
    From the article:

    Said EResolution President Karim Benyekhlef: "It is but an open secret that lawyers advising their clients in domain name cases have no scruples about quoting the figures and saying that the odds are better with a given provider."

    Why are the complainants' lawyers to blame for this? The ICANN rules let the complainant pick the arbitrator. In the US at least, an attorney has a ethical obligation (which are enacted as statutes or regulations in most states) to zealously represent a client's interest. Picking an arbitrator that rules less often for the complainant is arguably a breach of that obligation. In fact, the attorney who didn't do this could be sued (probably successfully) for malpractice and potentially disbarred or sanctioned by the state. Thus, by the admittedly a bit counterintuitive logic of the legal system, it is entirely scrupulous of the lawyers to advise using a complainant-favorable arbitrator.

    The problem is in the ICANN UDRP rules, which are blatantly unfair to the defendant.

  • Big business choose WIPO the hanging judge (Score:3, Insightful)

    by Garry Anderson ( 194949 ) on Wednesday December 05, 2001 @11:50AM (#2660107) Homepage
    eResolution admit that they cannot compete with the prejudiced United Nations World Intellectual Property Organization (WIPO.org).

    Even their own Canadian government went to UN WIPO - "while claiming unfailing support for Canadian know-how in e-commerce" - rather than them.

    WIPO are the provider of choice, winning most cases for the 'prosecution' - they are obviously corrupt.

    Especially as they know the solution to these problems on the Internet. They could stop 'consumer confusion', 'trademark conflict' and 'passing off'.

    The solution was ratified by honest attorneys - including the honourable G. Gervaise Davis III, himself a UN WIPO panelist judge.

    This is very important, as virtually every word is trademarked - Alpha to Zeta or Aardvark to Zulu, most many times over. The word Apple is trademarked hundreds of times in the USA alone - I have yet to check it in the 200+ countries. Conflict is IMPOSSIBLE to avoid.

    The solution involves giving trademarks a domain in the restricted TLD of .reg - to act as certificate of authentication.

    So when consumer enters apple.com, they are redirected to apple.computer.us.reg.

    When entered directly, .reg can be used as a directory.

    The thousands of other trademarks using the word 'apple' may then use their mark without any of these problems e.g. apple.tld redirected to apple.record.uk.reg !

    Please visit WIPO.org.uk [wipo.org.uk].

    Usual disclaimer for the litigation mad and greedy lawyers: All is my logically considered and informed opinion. However, in the last two years nobody has yet proved me wrong. Corruption has yet to be proved in a court of Law.

  • Nature of the Business -- Rules must change (Score:3, Insightful)

    by werdna ( 39029 ) on Wednesday December 05, 2001 @12:26PM (#2660353) Journal
    Because the ICANN rules permit the petitioner to select the forum (the arb), is it at all unsurprising that when a lawyer (me too) is filing one of these things, she will obtain the statistics for the various arbs to determine which group, if any, is more pro-petitioner than another.

    Since an arb result is unappealable, every arb result is final. There is therefore no downside for an arb to be pro-petitioner. Since the petitioner gets to decide which forum gets the fee, why would any arb panel ever consider doing anything other than hiring a bunch of pro-petitioner arbitrators, and eventually phasing out anyone who drops the panel's statistics?

    For the respondants, by the way, the strategy is to pay extra for the three-judge panel. The statistics drop from something like 88% pro-petitioner for single-arb panels to mid-sixties.

    And don't freak too much about the numbers -- the vast majority of cases I have seen are serious cybersquatting cases. Despite the statistics, I have yet to lose a case due to perceived bias, though I have seen some howler opinions elsewhere. I wonder if those result as much from poor or pro-se representation as from bad arbitration?

    At any rate, the RULES create an inherently unbalanced world. ICANN, or preferably a panel responsible to the public, and not the petitioner, should select the panel by random drawing, and should supervise and investigate allegations of bias. Even though the decisions themselves are not reviewable, the arbitrator should be accountable to someone to do justice, not merely "help up the stats."
  • .com is for business. Doesn't make sense to my why anyone is bitching about not being able to use a business domain for a personal page. If it's a business to business dispute then it's different, but why should I get reynolds.com for my personal home page, even if I registered it before Reynolds aluminum or tobbaco? I still believe that we need .XXX for porn and a similar extension for personal pages, not everyone needs a .com; just like Zoning: there are places for business, for homes, for Adult Book Stores, for Daycare facilities and for schools.
    • It would be that simple except for the fact that businesses have sued holders of similar names in the supposedly non-business domains and won. It does no good to proliferate TLDs when the distinctions between them are not respected anyway.
      • Yeah, I hear you and agree.
        A business should have no say in how non .com domains are used, IMHO. And this does not preclude nasty fights in the .org domain, several Baptist church splits come to mind. Hey, here in the US we have the best legal system money can buy! I think there could be a several good solutions if any creativity was allowed:
        -no one can have both a domian name and the 'sucks' version of it. Hey, if somebody thinks that your product/service sucks so bad it deserves a website of that name, well it probably does :-)
        -the same name cannot be registered as both .org and .com to the same entity.
        -there can be no limit or censorship of anything id the .xxx domain, but anything NOT in the .xxx could get you into the legal mess with local community standards. That way if a business or school or parent wants to block porn they can simply block .xxx; perhaps there could be a .med for legitimate medical sites (although I think that .edu fills this function)for kids and others who might want sex ed info, or such.

    • I'd agree with this.... (Score:1, Interesting)

      by Anonymous Coward
      If it worked both ways. If I owned, say microsoft.org, it would get taken from me even though MS is clearly not a non-profit. The fact is, the original definitions of what TLDs meant is lost in the current system.

      See the dispute over WWF.com [newsbytes.com]. The World Wildlife Fund sues the World Wrestling Federation for the domain wwf.com. Now, since the World Wildlife Fund is a non-profit, and already owns wwf.org, and the World Wrestling Federation is clearly for-profit, where's the dispute? Under RFC 1591 [ohio-state.edu] each party has the correct domain.

      Of course, the WWF (wrestling) has abused the UDRP themselves in the past, but the my point is that actually following the traditional definition of the TLDs is not something the arbitrars care about at all.
  • I've written a paper ("ICANN's "Uniform Dispute Resolution Policy"- Causes and (Partial) Cures") that discusses the history of the UDPR and some possible improvements. I'm afraid there's only a .pdf version [miami.edu] at present, however.

    I also want to plug ICANNWatch [icannwatch.org] as a place to go for discussion of all ICANN-related issues, including domain name arbitrations.

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