WIPO Dispute Decisions Contestable In U.S. Courts 101
Thu Anon Coward writes: "Yahoo is reporting that the 1st U.S. Circuit Court of Appeals in Boston has said that WIPO domain disputes can be contested in court. A domain name holder may file a civil action suit in U.S. courts. Apparently we can thank the 'Anti-Cybersquatting Consumer Protection Act,' signed by former President Clinton."
Was not this always so? (Score:1)
Re:Was not this always so? (Score:3, Informative)
Re:Was not this always so? (Score:1)
Why couldn't you? (Score:5, Informative)
WIPO arbitration has always been that, arbitration. Not legally binding. (of course, who knows what kind of contract stuff you implicitly signed on for when you purchased your domain)
The fact that IP owners get to pick the arena for the legal fight is a crock of shit... and in my opinion should cast a lot of doubt on any decision handed down by WIPO, who always vote with only business consideration in mind (the few cases where they have allowed the copyright holder to keep their domain, it was because they felt that the incumbent had a useful business reason for keeping the domain).
The US courts might not be the most fair organizations, but I'd imagine that they'd be a hell of a lot better then WIPO.
Not the law . . . (Score:4, Insightful)
WIPO arbitration has always been that, arbitration. Not legally binding. (of course, who knows what kind of contract stuff you implicitly signed on for when you purchased your domain)
The UN has no jurisdiction whatsoever, but the analysis fails from there going forward. Registrars under the ICANN must have registrants contractually bound to the UDRP, which means that the ICANN-sponsored arbitrators arbitrate the "ownership" of the domain name -- which is just a contract between the registrant and registrar to maintain the DNS records.
The arbitration result is legally enforceable in the United States, without review on the merits, as the arbitration is a final, unreviewable, determination on the merits of the CONTRACT between the registrant and the registrar. This doesn't mean that a losing complainant couldn't sue under ACPA, unfair comeptition and trademark law after losing, to enjoin the USE of the domain name by the registrant.
Oddly enough, the first circuit held that ACPA appears to effectively 'horn in" on that process, and would certainly preempt contract law to the extent that it does.
But make no mistake, UDRP dispute resolution is hardly a non-binding process. If a court order isn't sought and does not issue, a lost domain name is gone, gone, gone.
Back the truck up! (Score:2, Informative)
To quote: "federal courts have jurisdiction over international domain name disputes".
This still won't take all the power away from WIPO and ICANN that it needs, but it's a step towards better arbitration. Domain names are not trademarks!
Re:Back the truck up! (Score:1, Interesting)
If they're in Canada then they're intranational not international. To be international they'd have to occur between nations e.g. a dispute between Canada and Sweden would be international. A dispute that took place outside of any nation could also be argued to be international as in "international waters". A dispute that takes place within one nation cannot be international, by definition.
Not the law . . . (Score:3, Informative)
To quote: "federal courts have jurisdiction over international domain name disputes".
ACPA and Lanham Act section 43(c) provide all the relief a nasty plaintiff might want in a domestic dispute. Nothing more is necessary. Any suggestion that the Court passed on or limited domestic complaints turns the case on its head -- this one addressed international complaints because the application of ACPA in that context raises significant constitutional issues under article III, and some treaty law questions.
This still won't take all the power away from WIPO and ICANN that it needs, but it's a step towards better arbitration. Domain names are not trademarks!
No, they are not. But once you use them in commerce, which is actually pretty not hard to do, that USE can give rise to trademark infringement. Even if it doesn't, there is a basis for a legal claim for dilution for ANY use "in commerce," even if it doesn't compete. Finally, even if none of those things happen, there is always a claim under ACPA.
It doesn't matter (Score:2)
While it's nice that the US govt has some sovriengty inspite of the WIPO, the only thing that's really going to get this dog off our backs is civil disobedience and technical solutions like a freenet based domain name structure instead of a DNS based one.
Of course, the real threat of the WIPO is not domains, but copyrights and patents. They've played crutial roles in trying to destroy open source, and trying impose AIDS patents at the cost of 10 million African lives.
Since when (Score:1, Insightful)
Honestly, we need a new world micro-government to govern matters of the Internet, made up of technology experts and civil rights activists, who can make sure that one government cannot control the Internet.
O how I wish I was a Sealand [sealandgov.com] citizen, but unfortunately you can't be one.
-evan.
Re:Since when (Score:1)
Honestly, we need a new world micro-government to govern matters of the Internet, made up of technology experts and civil rights activists, who can make sure that one government cannot control the Internet.
I think that's what the WIPO and WTO are trying to be. Frankly, I'd rather take my risks with the US.
Re:Since when (Score:2)
It's not only the Internet. Have you read news lately - let's say in the past 6 months? It seems like everything on this planet comes under US jurisdiction these days...
And as long as this happens, the big guys (the acronyms and the corporations) will be able to drag the small guys in lawsuits they can't afford... or just threat [slashdot.org] that they'll do that.
Re:Since when (Score:2, Interesting)
I live in the UK and i'm fine with the system. Like another poster said the courts are a lot better than WIPO. And if you're so unhappy with the situation why not go and set up your own DNS system that you will have control over. Why don't other countries do that as well? They have an idea that the internet is freedom, wherein fact they are connected to a US network which has gone global. (ignoring the fact that country TLD's are probably in the jurisdiction of a country's court system as they are based there - but IANAL)
If other countries want control of "the internet" they can make their own networks with their own DNS systems. Of course this would lead to namespace fragmentation and (maybe) duplication. And they might also have to block access to sites who in their opinion are "bad" or are "cybersquatters". In my opinion this would not make it an internet anymore.
Maybe someone should campaign for a change in the DNS system so that there is a seperate system for every country... Making a micro-government (whatever that is) wouldn't help. They'll still be a goverment, and liable to corruption. How will they be elected? Who is the electorate? These have to be thought through before setting anything up, and then there is the question of who is going to give them the power and legitimacy anyway. In that case, ICANN can be called a "micro-goverment" - even though IMO it's no good at all.
Re:Since when (Score:2)
well that's an under-statement let's see there is NIC, alterNIC, openNIC, PacificROOT, and AtlanticROOT all off the top of my head, I know there is more.
Why don't other countries do that as well? They do, the
Maybe someone should campaign for a change in the DNS system so that there is a seperate system for every country every country does, infact in some countries sell domain rights are big business I remember the
What this realy does is enforce the fact that the WIPO is not the fat lady; it's the involved countries courts that have the final say, so when there is a dispute we'll just give lip service to the UN body and save most of our resorces for the court fight in the juricictional country.
Re:Since when (Score:1)
My point was if countries think it is unfair that the US controls such a system they should make their own DNS system - that is maybe with their own
Chill Pill (Score:5, Informative)
Virtually every international treaty is a voluntary agreement. Any country that doesn't like the provisions is free to quit. Don't like the WTO? Well, don't sign it. Don't bitch about other countries benefiting from it, though. Any country that feels a particular agreement is prejudicial to its interests is free to not accept it.
A world micro-government is precisely the wrong thing to do. There is no challenging the authority of such a government. There is nothing to prevent the more influential countries from ganging up to screw the others.
Look at things like the CTBT (Comprehensive (Nuclear) Test Ban Treaty) for example. Countries like India and Pakistan don't think that is fair to them because it allows countries like the US to keep their nukes while forcing them to give up theirs. So what do they do? They refuse to sign it!.
A world micro-government would force them to accept what (in their view) is an iniquitable solution.
There is nothing fundamentally wrong with the way things work right now. Yes, some countries are able to get more but that's only because they bring more to the table. And this is not about military power - I can't think of a time when a country was bombed because they didn't sign a trade treaty. This is about financial power. "You want access to the US's markets? Well, how much is that worth to you? What are you willing to give up for that access?" The only reason the US has more of a say in these affairs is because the other countries would rather let the US have the bigger say than drop out of the agreement.
Nothing is broken. Move along.
Re:Chill Pill (Score:1)
At this point, someone could ask the more fundamental question of whether or not the government should be involved in controlling access to markets in the first place.
Of course, each country must decide on its own how much control to give their government in regulating the markets, but many examples (such as pre-Chinese Hong Kong) seem to suggest that countries are more likely to prosper when governments keep out of market access decisions.
Re:Chill Pill (Score:1)
Are you serious? I don't know what country you live in, but here in the U.S. we had only two presidential candidates who were allowed to appear on television, and they were BOTH in favor of joining the WTO! I didn't get a choice, and I'm guessing, neither did you. International business is a force more powerful than governments.
Sometimes its hard to tell why a war starts. Did the American revolutionary war start because of a disagreement over government, or trade? (Tariffs definitly played a role, though). Did the gulf war start because of territorial questions, or did the international community just want to make sure oil trading continued normally?
Your argument is very idealistic and doesn't really reflect the actual world.
Re:Chill Pill (Score:2)
Virtually every international treaty is a voluntary agreement. Any country that doesn't like the provisions is free to quit. Don't like the WTO? Well, don't sign it.
You are right but there are subtleties. Dictator A might run up a huge foreign debt. Then president B gets elected after the dictator is assasinated. The country is in debt and can be ordered to join international organizations like the IMF or WTO.
Re:Chill Pill (Score:3, Insightful)
Iraq. Also Iran but instead of bombing them we overthrew their democratically elected leader and installed the shah. Oh yea there was also that guy named Pinochet.
Nobody likes to lose control (Score:1)
To be fair though, I'm not really complaining about power the US has over the internet, provided the government doesn't start directly waiving its hand over matters (like we've seen in China) I'm not going to stand up to the working model.
Food for thought though: I'd rather have to deal with a domain dispute in a Circuit court than deal with corrupt systems like the former Milosevic era Yugoslavia: They found most major world leaders guilty of something or other in absence of them being there. At least I'd have the opportunity to state my case in the States- whether it falls on deaf ears or not is for the people to decide.
Or, worse comes to worse we could join onto the whole Illuminati idea and start a secret world government founded by
-Wrexsoul
Re:Since when (Score:1)
Oh yeah, because they built it. [isep.ipp.pt]
Mixed bag (Score:4, Insightful)
However, this also means that if they happen to make a good decision in favor of the little guy, a big company can then tie it up in court and cost them millions in legal fees.
Hopefully, anything that gets taken to a real court will be decided quickly, because the situation is usually pretty simple and the courts should be able to affirm or reverse a decision without too much heavy thinking.
Re:Mixed bag (Score:2, Insightful)
When all is said and done, I really trust the US court system before I would trust the WIPO. Which isn't saying much, but still.....
Re:Mixed bag (Score:1)
Which would be all the time, according to exactly 50% of the litigants (guess which 50%?
Ownership (Score:1)
The matrix has you. (Score:1)
At least the internet's not dominated by thinking machines our to control us. Or wait, maybe it is and we're all stuck in some kind of giant computer simulation.
Nah, but that'd make for a good movie, hope someone picks up on my idea.
-Wrexsoul
bully tactics (Score:2, Insightful)
It is for this reason that I think that there should be an Infinite number of TLDs, or may just a damn large number. Of course there are reasons against it. but this would serve to blunt bully tactics to some degree
ICANN's international house of waffles. (Score:2, Funny)
This is why it's called ICANN and not IWILL
Always this way, according to ICANN (Score:3, Informative)
"If the parties aren't satisfied with the outcome of the judge's decision or the trials through the UDRP, they have the right to have it tried in court," said Mary Hewitt, an ICANN spokeswoman. "It's always been that way; it's written that way...It's absolutely the prerogative of the parties involved. Either way, whatever the decision is, it doesn't matter; they have absolutely the right to go to court following a UDRP" proceeding.
Re:Always this way, according to ICANN (Score:1)
Yes, it would be more useful to read the actual court ruling [uscourts.gov] or a more detailed news report [newsbytes.com] than the Yahoo/CNet story.
The heart of the case was not whether a court - any court - can usurp ICANN's UDRP, but whether attempts to earn a declaratory judgment in the U.S. can be started under U.S. anticybersquatting law without the trademark holder making an ACPA threat.
This case could apply whether the trademark holder is outside the U.S. or not.
Jursidiction from a geographical standpoint is pretty much decided at the get-go in UDRP cases.
Once again... (Score:2, Interesting)
Any wonder why the international community looks at us (Americans) as a bunch of rich bullies?
Re:Once again... (Score:1, Flamebait)
America's rich because it's free, not because it's a bully. I myself am more interested in maintaining my rights then getting along. I don't think Americans can expect the US to stick a bag over it's head while external sovriegnties put the screws to us. ESPECIALLY the WIPO who I don't recall ever sanctioning as a US citizen, and whose authority I simply refuse to acknowledge.
Re:Once again... (Score:2)
If you don't like the way we play just take your ball and go home to your own play-ground. That's the whole point, they want to do business with us, collect our money, but do it by their rules, it just don't work that way, never has and never will; my game my rules, your game your rules.
If I want to do bussiness in Russia, I'd better be prepaired to play by differnt rules, some will be better, some will be worse but all will be different. It's a big world with a lot of people, neither your views nor mines are the last words on anything.
Re:Once again... (Score:1)
Ooh? and what about .us?? .com is top level; for anyone from anywhere. When you want a US specific name go for .us!
Because the Internet ultimately belongs to the US (Score:1)
Really? (Score:1)
Last I checked, there is no 'FIT.'
Does the U.S. government get tax dollars for every individual who is connected to the net? Does the gov't get tax dollars for every country that has the "privelage of peerig with us."
No.
Besides, where is the internet? It must have a physical location if the gov't owns it. And since our computers are attached to the net, than doesn't the gov't own those too, in a sense? If so, then don't keep anything illegal on that puppy, cuz they can take it whenever they want.
If the gov't owns the idea or whatever, than do they own the ideas that are expressed on the net? Does that mean they can regulate all that is expressed on the net?
I am an American.
Re:Really? (Score:1)
Been spending alot of time on Mars? The Congess has considered implementing a FIT, however they've decided that the net is still maturing and they've decided to wait. Check out a simple google search Google: Internet tax moritorium [google.com] and you can learn more.
Besides, where is the internet? It must have a physical location if the gov't owns it.
It sure does. Congress controls the IP addresses and the root nameservers. Check out ICANN [icann.org]
The internet exists wherever the root nameservers and IP address allocation are maintained. Since ICANN/IANA do this based on authority granted by Congess, I'd say that the internet is Americas.
Re:Really? (Score:1)
Besides, where is the internet? It must have a physical location if the gov't owns it.
Where is The Matrix? Where is Harry Potter and the Philosopher's Stone? Something doesn't have to exist in a specific location--heck it doesn't really even have to exist for someone to own it. Yeah, I have problems with that, but nobody asked me.
Re:Really? (Score:1)
Jay Sallen is Scum (Score:4, Interesting)
For background on the case, see this article on slashdot [slashdot.org], or these [wipo.int] cases [wipo.int] on WIPO's site. In a nutshell, he registered domains for two Brazillian soccer teams, Cruizero and Corinthians. He approached Corinthians about selling the domain, they sent him a notice to hand it over. He then put up bible quotes, and claimed that they were stomping on his first amendment and freedom of religion rights, but lost in UDRP [icann.org] proceedings.. It doesn't help his case that the registrant for his domains was "prestige domains (for sale)", nor does it paint a good picture that he registered dowjonesupdate.com and tonimorrison.com, though he handed over both of those without ICANN interceding.
This guy is a domain speculator, pure and simple. He (rightfully) lost two cases to the trademark holders, and he's not happy that he didn't get paid for being first to register the domains. Personally, I'm surprised the low-life found the nickles to rub together to retain a lawyer to put it to the courts.
Re:Jay Sallen is Scum (Score:2)
Here is clue. It's about who makes the money. If the corporation end up with the money it's OK. If a poor slob does then it's not OK.
Re:Jay Sallen is Scum (Score:2)
If the poor slob took something that shouldn't have been his in the first place, it's not okay. All of the examples you outlined are different in that there is a buyer and a seller in the transaction. In the case of domains, there is no "seller", only a near-infinite number of combinations of letters and numbers from which to draw.
Business.com? Good grab. X.com? Another good call. Those were speculators--they paid their money and they got it back. It's assclowns like this [alldomainsatrisk.com], registering all sorts of domains for which not only do they not have rights, but someone else already has the legal right to, that give domain speculators a bad name.
He is not Scum (Score:2)
The result, as we all know, is that only ICANN acredited registrars are allowed to speculate on domain names. Everybody else is subject to UDRP action. I'd like to see a UDRP complaint lodged against VRSN for holding a domain name in bad faith. Maybe someone should pick one of the thousands of expired-but-not-released names, register it as a trademark, and file a complaint.
Re:He is not Scum (Score:2)
I think that'd be a great idea too. Don't think that my dislike of domain disputes only comes down on the side of the squatters. NICs registering names and holding them is a somewhat dicey proposition, legally speaking. They're entrusted with the orderly disbursement of a resource. By holding names, they breach the trust given to them.
In other news... (Score:3, Funny)
We miss you Bill. (Score:2, Insightful)
Do you remember who passed the DMCA? (Score:1)
Huh? (Score:2, Insightful)
Let's face it, neither party has a monopoly on attacking individual rights.
File for a trademark (Score:2)
Until domain names came along, few people bothered with supplemental registry trademarks, but because ICANN's rules respect even supplemental registry trademarks, it's worth doing.
I hold Downside(tm), downside.com [downside.com], Animats(tm), and animats.com [animats.com]. Downside was accepted with no problems and is on the principal register, but Animats was initially rejected as a generic term for artificial animals, and I accepted a supplemental registration on that one.
Re:File for a trademark (Score:2)
How to file for a trademark (Score:2)
Trademark filings are simple enough to do it yourself. The Nolo Press books on trademarks can be helpful. [nolo.com]
Replace trademark symbol with restricted TLD (Score:5, Insightful)
The United Nations World Intellectual Property Organization (WIPO.org) and the United States Department of Commerce (DOC.gov) are hiding the simple solution to trademark and domain name problem.
The US Patent and Trademark Office virtually admitted this, August 22, 2000: "The questions you raised with respect to trademark conflicts, as well as the proposed solutions, have their basis in good common-sense. As such, they have been debated and discussed quite exhaustively within the USPTO, the Administration, and internationally."
A restricted TLD is required to replace the trademark symbol. The solution was ratified by honest attorneys - including the honourable G. Gervaise Davis III, 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. MOST share the same words or initials with MANY others in a different business and/or country.
For example, the World Trade Organization (WTO) shares its initials with six trademarks - in the USA alone. Conflict is IMPOSSIBLE to avoid.
The US Department of Commerce allow this conflict to continue purposefully, knowing they abridge peoples right to use these words - even the common words you learnt with your A B C's - apple, ball and cat. You cannot make your own small business using a dictionary word, it is bound to conflict with some trademark or other - check yourself [uspto.gov]. People also cannot make fan sites or protest about corporations (one of reasons why they do not want it). This violates the American Department of Commerce own First Amendment.
The authorities are allowing certain trademarks to be abused by their owners, giving them dominance over others using same words. Example; Caterpillar tractors claimed 'cat' is 'their' trademark on the Internet - even though there are hundreds of trademarks using the word 'cat' - IN THE U.S. ALONE. The United States Department of Commerce and the World Intellectual Property Organization do not seem to mind that all trademarks fight it out - or that one has this illegal dominant position. This is against unfair competition [etsi.org] law.
For the TM lawyers - yes, I know about classifications. Please visit WIPO.org.uk [wipo.org.uk] - nothing to do with UN WIPO.org.
Shouldn't it have been called... (Score:2)
What happens... (Score:2)
Will we see different root nameservers serving up different DNS based on the rulings of the courts presiding in their jurisdiction?
Re:What happens... (Score:1)
Whose trademark is in dispute in a given case?
Traditionally, a plaintiff would file civil suits in the jurisdiction in which a tort happened. With something like this, that means he'd file in his home jurisdiction.
So, I could say something mean about France, like a a crack about how French automobiles are a disgrace to the mechanical world. Someone in France decides my statement violated some French defamation law and files on me in a French court. Where it breaks down is, French civil court rulings are meaningless in the US. IIRC, there is no extradition in civil matters.
It gets back to the same thing as the talk about an international human rights court: Who enforces the ruling? US Marshals are not going to arrest people who are in contempt of UK courts. The sheriff of Pueblo County, Colorado, USA, is not going to evict someone on the say-so of a German court. Italian Carabinieri probably don't care too much about the US Federal Rules of Criminal Procedure.
So, this ruling by the US court only moves the paralysis back a level. That doesn't bother me. For one thing, I am not a citizen of any nation other than the US. I have not left the US in five years. I own copies of GPG and Mein Kampf, unregistered guns, lockpicks, a truck that may never pass an emissions test again, and other such items. All perfectly legal in Colorado, USA, but would make me a criminal pretty much everywhere else on the planet.
I'm not one of those people who believes that the internet means the end of national borders. The notion of Yahoo being subject to France's "don't think about Nazi's" law or porn sites being subject to Germany's "Children shouldn't be allowed to see internet pr0n-that's what the TV is for" law bothers me. And I'm even more bothered when Dimitri Skylarov gets locked up in the US because of the "Just because you bought and own an eBook doesn't necessarily give you the right to read it" law or when Amnesty International gets attacked under China's "Anybody who refers to the glorious People's Liberation Army as a bunch of fascist thugs will be tortured and executed" law. I'm very much a fervent US patriot, but let's be realistic: National jurisdiction really does end twelve miles off the coastline.
Which means the courts can pontificate all they want. The US courts will accept jurisdiction if a suit is filed with them. French/Swedish/UK courts will probably do likewise. And the rulings may well be unenforceable, except against large businesses with operations in that country.
Frankly, unenforceable rulings don't bother me so much. A person or business can honor them anyway. If so, that maintains some semblance of stability and the rule of law, and IMHO that's generally a good thing. Or he can disregard an unenforceable ruling, and the Court of Public Opinion gets to rule on that.
And there's no jurisdictional limits and no appeal out of that one.
Re:What happens... (Score:2)
What if the same word has several different trademarks on it? One is owned by an American company, another is owned by a British company.
The American company files suit in a US court; the British company files suit in a British court; each court decides that they have jurisdiction.
Re:What happens... (Score:1)
The American company files suit in a US court; the British company files suit in a British court; each court decides that they have jurisdiction.
If the two companies are coming into conflict, that means that the US company has a UK subsidiary, and/or the UK company has a US subsidiary. That means there IS someone to show up when it goes to trial. That also means that both cases will have defendants under the courts' respective jurisdiction. I don't expect reality to be that nice and neat, but it'll work for an example.
And from there, it's potentially a royal goat rope. In theory, the UK court would issue orders which are binding only in the UK on the UK litigants, and the US court verdict would be binding only in the US and only on the litigants in the US case. That's not exactly neat and tidy, but it should make sense if you think about it.
In practice, I expect it to turn out to be a big-assed, ugly, and complicated mess. One of the courts might try to assert jurisdiction where it shouldn't, which may or may not result in the trial judge getting his dick knocked down by the US Supreme Court or the UK's equivalent (a panel drawn from the House of Lords, is it?). Maybe a defendant is going to decide he doesn't want to do business in that country after all and screw you, Judge. There's something about civil court that tends to bring out the spoiled children in people.
I'm sorry that this isn't the insight you were probably hoping for. This is an area where "having an insight" and pulling a wild guess out of one's ass are pretty much the same thing for the time being.
Re:What happens... (Score:2)
A more likely scenario is where each company operates only within their own nation, but they both want control of the same
About time! (Score:1)
Legally Binding (Score:1)
Money, and ultimately, the power that it buys, is real 'law'.
Arbitration - Voluntary - Both Parties (Score:1)
If the WIPO route of resolving a domain conflict is indeed arbitration, then yes the outcome could be contested in a proper court of law. This is however uncommon.
Arbitration is normally a voluntary process. The two parties both agree to go for arbitration, and before they do, they normally sign cross-undertakings, agreeing that the outcome of the arbitration is final and they would accept it. So if one party doesn't like the outcome? Tough luck. If they would go against the undertaking already signed and bring the case to court, the other side would show the judge the undertakings, and chances are, the judge would then throw the case out.