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Domain Name DRS Policies: from the sublime to the rediculous
- Thread starter olebean
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It's title seems to be critical. What is your overview of the paper and its conclusions?
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You guys know I cannot quote from the article but......
In my opinion it appears Tony’s article is written as unbalanced self promoting Euro sceptic, the article acknowledges that notably Nominet were ready to be consulted......
A UDRP fan grateful of a process which helps prevent bloody-minded cyber squatters that have prevented trade mark holders from registering their domain
Unless you guys see it as any different?
In my opinion it appears Tony’s article is written as unbalanced self promoting Euro sceptic, the article acknowledges that notably Nominet were ready to be consulted......
A UDRP fan grateful of a process which helps prevent bloody-minded cyber squatters that have prevented trade mark holders from registering their domain
Unless you guys see it as any different?
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Just tried to login using my Athens (University) login:
Journal of Intellectual Property Law & Practice -- Sign In Page
However it still won't let me view it and i'm not paying the $25 since I pay my tuition fees lol.
Journal of Intellectual Property Law & Practice -- Sign In Page
However it still won't let me view it and i'm not paying the $25 since I pay my tuition fees lol.
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I read this a few months ago and, from memory, it points out some pretty serious defects in the text of Regulation 874/2004 (which contains the substantive rules governing .eu dispute resolution).
In fact, I think I have a copy somewhere...
...
Willoughby's main criticisms of .eu ADR are:
(1) During the sunrise period applications were not restricted to those with registered trade mark rights. This has led to unnecessary cost and complexity.
(2) The definition of rights is discriminatory because it is grounded in national law. E.g. A person in one member state may have rights in his own name by virtue of national law, while a person with the same name in another member state has no such rights. This problem affects both sunrise applications and ADR proceedings.
(3) [Most importantly for you guys, I think] The Regulation can be used to dispossess domain registrants who have not registered or used the domain name in bad faith. All that needs to be shown (in addition to the domain being identical or confusingly similar to a name or mark protected by Community law) is that the registrant has no legitimate interests; bad faith is simply an alternative ground for dispossession.
TW: "Suppose for example that .. a domain name dealer ... has registered a host of dictionary words as domain names in the .eu domain with a view to selling them , and one of those dictionary words, unknown to him, is a registered trade mark belonging to someone within one of the 25 Member States of the EU. Will he be deprived of that domain name on the basis that he has no rights or legitimate interests?"
(4) Also very critical of Art 21(3)(b)(iii) which "has to be read to be believed" - but problem is rather tiresome to explain.
I wrote an introductory article (not a very good one, I have to say...) on the subject highlighting some of the main problems:
.eu disputes article
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Sequitur IPS - Domain name disputes, cybersquatting and UDRP cases
In fact, I think I have a copy somewhere...
...
Willoughby's main criticisms of .eu ADR are:
(1) During the sunrise period applications were not restricted to those with registered trade mark rights. This has led to unnecessary cost and complexity.
(2) The definition of rights is discriminatory because it is grounded in national law. E.g. A person in one member state may have rights in his own name by virtue of national law, while a person with the same name in another member state has no such rights. This problem affects both sunrise applications and ADR proceedings.
(3) [Most importantly for you guys, I think] The Regulation can be used to dispossess domain registrants who have not registered or used the domain name in bad faith. All that needs to be shown (in addition to the domain being identical or confusingly similar to a name or mark protected by Community law) is that the registrant has no legitimate interests; bad faith is simply an alternative ground for dispossession.
TW: "Suppose for example that .. a domain name dealer ... has registered a host of dictionary words as domain names in the .eu domain with a view to selling them , and one of those dictionary words, unknown to him, is a registered trade mark belonging to someone within one of the 25 Member States of the EU. Will he be deprived of that domain name on the basis that he has no rights or legitimate interests?"
(4) Also very critical of Art 21(3)(b)(iii) which "has to be read to be believed" - but problem is rather tiresome to explain.
I wrote an introductory article (not a very good one, I have to say...) on the subject highlighting some of the main problems:
.eu disputes article
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Sequitur IPS - Domain name disputes, cybersquatting and UDRP cases
talk to eurid
With all respect seq I do not totally agree.
I asked the relevant body (not disclosed) regarding a first name which also had a trade mark.....whilst they did say it was down to the relevant court to decide...they did say that 'legitimate interest' can be shown by taking steps to develop the name as a website.
My opinion:- they are gunning for those who buy to sell with no interest in developing that name....so by merely offering to sell the name you could lose the name to anyone who has an interest in that name.....however the adr fee is very high so many will settle out of court ie. the trader will make substantial money as long as he pitches the price under the cost of 'adr'
Lee
With all respect seq I do not totally agree.
I asked the relevant body (not disclosed) regarding a first name which also had a trade mark.....whilst they did say it was down to the relevant court to decide...they did say that 'legitimate interest' can be shown by taking steps to develop the name as a website.
My opinion:- they are gunning for those who buy to sell with no interest in developing that name....so by merely offering to sell the name you could lose the name to anyone who has an interest in that name.....however the adr fee is very high so many will settle out of court ie. the trader will make substantial money as long as he pitches the price under the cost of 'adr'
Lee
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Lee
I don't disagree with any of your points, Lee.
Art 21(2) reads:
A legitimate interest within the meaning of point (a) of paragraph 1 may be demonstrated where:
(a) prior to any notice of an alternative dispute resolution (ADR) procedure, the holder of a domain name has used the domain name or a name corresponding to the domain name in connection with the offering of goods or services or has made demonstrable preparation to do so;
(b) the holder of a domain name, being an undertaking, organisation or natural person, has been commonly known by the domain name, even in the absence of a right recognised or established by national and/or Community law;
(c) the holder of a domain name is making a legitimate and non-commercial or fair use of the domain name, without intent to mislead consumers or harm the reputation of a name on which a right is recognised or established by national and/or Community law.
Clearly, a "legitimate interest" can be a developed website (or demonstable preparations toward a developed site) under Art 21(2)(a).
Willoughby points out that the equivalent UDRP provision refers to a "bona fide offering of goods or services" - but doubts whether the removal of the words "bona fide" in the Regulation makes any real difference. There's room for argument here, I guess, that while a site full of ads might not create a legitimate interest under the UDRP it can create a legitimate interest (as an offering of services) under the Regulation. I haven't yet had cause (thankfully) to review the way the EURid panellists are treating this issue.
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Sequitur IPS - Domain name disputes, cybersquatting and UDRP cases
I don't disagree with any of your points, Lee.
Art 21(2) reads:
A legitimate interest within the meaning of point (a) of paragraph 1 may be demonstrated where:
(a) prior to any notice of an alternative dispute resolution (ADR) procedure, the holder of a domain name has used the domain name or a name corresponding to the domain name in connection with the offering of goods or services or has made demonstrable preparation to do so;
(b) the holder of a domain name, being an undertaking, organisation or natural person, has been commonly known by the domain name, even in the absence of a right recognised or established by national and/or Community law;
(c) the holder of a domain name is making a legitimate and non-commercial or fair use of the domain name, without intent to mislead consumers or harm the reputation of a name on which a right is recognised or established by national and/or Community law.
Clearly, a "legitimate interest" can be a developed website (or demonstable preparations toward a developed site) under Art 21(2)(a).
Willoughby points out that the equivalent UDRP provision refers to a "bona fide offering of goods or services" - but doubts whether the removal of the words "bona fide" in the Regulation makes any real difference. There's room for argument here, I guess, that while a site full of ads might not create a legitimate interest under the UDRP it can create a legitimate interest (as an offering of services) under the Regulation. I haven't yet had cause (thankfully) to review the way the EURid panellists are treating this issue.
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Sequitur IPS - Domain name disputes, cybersquatting and UDRP cases
good point
Good point seq.
You would hope that experts act in a manner that is fair....if a ppc page is used then you must consider whether it represents a legitimate DIRECTORY that truely reflects the domain name. For example labour.eu havng pregnancy links or work links BUT NOT a link to the conservative party.
bounce was a funny one...touching on decriptive of goods ie. bouncy castles, balls etc.. and unlikely to be UNFAIRLY detrimental to the complainants rights....it could be argued it was more UNFAIRLY detrimental to the defendants rights as he could have sold the name for £5k approx to a non rights holder.
I personally think the law should test.... UNFAIRLY DETRIMENTAL AS OPPOSED TO DETRIMENTAL ...if not done already
Lee
Good point seq.
You would hope that experts act in a manner that is fair....if a ppc page is used then you must consider whether it represents a legitimate DIRECTORY that truely reflects the domain name. For example labour.eu havng pregnancy links or work links BUT NOT a link to the conservative party.
bounce was a funny one...touching on decriptive of goods ie. bouncy castles, balls etc.. and unlikely to be UNFAIRLY detrimental to the complainants rights....it could be argued it was more UNFAIRLY detrimental to the defendants rights as he could have sold the name for £5k approx to a non rights holder.
I personally think the law should test.... UNFAIRLY DETRIMENTAL AS OPPOSED TO DETRIMENTAL ...if not done already
Lee
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Seq
The wider point he appears to be making is that of broadening of the issue of rights. He makes it clear that through WIPO process around 1999 ish nobody defended the issue of what he some people term cyber squatting... He also brings forth the argument that unlike nominets DRS UDRP is pretty ridgid in structure. He doesn't appears in favour further consultation and possible UDRP evolving further for fear that voices will need to be heard which in turn could produce a system that is worse... What he means by worse is not clear, considering his position throughout one could only guess.....
I can not agree with the view that PPC etc could be at a further threat, ADR .eu has widen the issue of how rights can be established, as a mentioned this he does not appear to like and in my view that is what has gnarled him the most.... In other words, .eu has acknowledged that rights can co-exist..
The wider point he appears to be making is that of broadening of the issue of rights. He makes it clear that through WIPO process around 1999 ish nobody defended the issue of what he some people term cyber squatting... He also brings forth the argument that unlike nominets DRS UDRP is pretty ridgid in structure. He doesn't appears in favour further consultation and possible UDRP evolving further for fear that voices will need to be heard which in turn could produce a system that is worse... What he means by worse is not clear, considering his position throughout one could only guess.....
I can not agree with the view that PPC etc could be at a further threat, ADR .eu has widen the issue of how rights can be established, as a mentioned this he does not appear to like and in my view that is what has gnarled him the most.... In other words, .eu has acknowledged that rights can co-exist..
Someone should introduce the author to Open Publishing (Though it's not as important with things that privitely funded lawyers or individuals write as it is with civil servants and taxpayer funded scientists). Perhaps Tony Willoughby published it in this journal as he knew it wouldn't reach a wide audience, and so wouldn't be criticically appraised by many with an interest in the DRS process?
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Another view would be that he is positioning himself deeper with a particular community, without reasonable questioning or distinct balanced knowledge.....
A political game against arch protagonists? Academic acknowledgement where little academic resource exists?
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