On 23/11/2015 22:50, Mueller, Milton L wrote:
Bradley, you seem intent on manufacturing a disagreement where none exists. Of course a UDRP finding of illegitimate domain name use must take into account how the name is used. But the object of policy is not the content of the website per se but the domain name registration; i.e., the UDRP doesn’t tell the web site owner to change the content of their site, it takes away the name.
I agree with this. There is a world of difference between the object of the policy, and evidence used to adduce compliance with it. Consider an example. Suppose that there is a US corporation, Banana Inc, that makes consumer electronics products. Suppose that there also is a British company, Banana Ltd, that publishes music. Banana Inc registers Banana.com. Banana Ltd brings a UDRP case alleging infringement of its rights. As part of its investigation of the evidence, the UDRP panel looks to see whether www.banana.com contains evidence of the promotion of consumer electronics goods (which it will take as evidence of a good faith use), or a simply a sign saying "Check here soon for some juicy tunes!" (which it will take as evidence of bad faith). The UDRP exists to ensure that registrants do not register strings that they are not entitled to register, not to control the use of which web sites is put. Does anybody seriously dispute that my fictional panel, in acting as described, is simply trying to discover whether Banana Inc has registered this domain in good faith as a domain it is entitled to register, or whether instead it is registered in bad faith, to exort someone with legitimate rights? Does anybody seriously want to argue that the UDRP panel, by considering that evidence, is actually attempting to regulate whether web sites may be used to carry music? Unless you wish to argue that the latter is a reasonable contention, there is no basis in the text before us for supposing that it would interfere in any way with this UDRP practice. If either party were silly enough to bring an IRP case complaining that the UDRP was prohibited under this clause from looking at the web site for evidence to support a finding of good or bad faith, I am quite sure they would be told that they were...bananas. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA