Scott, None of the cases in the US will discuss the UDRP decision. From the outset the first court opinions stated that the UDRP decision was not relevant and would not be considered. This was in response to the defense argument that the UDRP constituted an arbitration and was thus outside of the court¹s jurisdiction under the Arbitration Act. This is not necessarily the case in other jurisdictions some of which tend to treat the litigation as an ³appeaL¹ and thereafter conducting a de novo review. And there are some jurisdictions which either (a) reject any post UDRP litigation for lack of the ability to state a claim for relief (e.g. They have no ACPA or similar laws), or (b) find the UDRP to have been an arbitration and thus conclusive. Hope this helps. Paul On 2/6/18, 8:17 PM, "gnso-rpm-wg on behalf of Scott Austin" <gnso-rpm-wg-bounces@icann.org on behalf of SAustin@vlplawgroup.com> wrote:
George: Some of the links you provided raised safety concerns on my browser so I did not review every link, but for each case for which you provided alternate links I was able to get at least the domain press version. It appears all but the last are stipulated settlements with no court opinion or analysis of claims or any discussion of a legal basis for overriding the underlying UDRP result. To echo an earlier post, it is questionable what, if anything, can be drawn from the court sanctioned settlements as the defendants in each case might have just lacked the resources or resolve to defend their UDRP success in an action in US federal court. The same would apply to the default judgment you obtained in Canada for <pupa.com> which WIPO did post. These cases show no court analysis questioning the efficacy of the UDRP.
The 4th entry on your list is interesting but may be very limited to its facts, especially as the Hogan Lovells analysis rightly points out, after the French district court agreed with the UDRP result the French appellate court considered territoriality in an infringement action and relied upon the related website's territoriality carve out (tabs for only non-EU countries) to deny trademark infringement, consistent with French precedent, even in the presence of use of a mark in a .com global gTLD domain name. As HL rightly pointed out, "the assessment of trademark infringement is intrinsically different from the assessment conducted under the UDRP."
Best regards, Scott
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-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 9:02 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
P.S. While I have Brian's attention, I'd like to note that I've **repeatedly** brought to WIPO's attention various court appeals of UDRP decisions, yet they they never get posted to WIPO's page at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/c hallenged/&c=E,1,PoV0aLE1t8_PgbqcdiLxKL0tvAU2CgEatRUI6TpbCcvpqvF8gCisD8w8i AijKAMyLx4MD3KyA6TKC1n4C9Gd5cfMcmRlqgOfX8tW9q1c0w,,&typo=1
I understand that others have attempted to also get cases added to that list, without success. Thus, perhaps we have a situation of low *reported* appeals, because of missing data with regards to court actions.
Here are 4 court cases that I brought to WIPO's attention already:
1. https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXihZRN shnHEMGlLFaHq7PTk5QqohVI49J-80RCiCStlxIPsMqsvZRw_5g2MwAfSjrYnxRQvdQtsUOtwg 8r9A9umsAX9FjS6mUYykungGnO5jGsw0JYiYgolQ,,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/07/21 /mike-mann-overturns-udrp-decision-court/&c=E,1,a8MkHb9J1psxxTor1hdACWod77 IUJlKgyLxhqAn-5NxX6Pf-ojz3Rphb9OfKMcXh0l9ryHtFznTlraJIlIuZIhvnnqzmEP56VNRp k4cVR9l1kp6-&typo=1
2. https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8lJn4c 5bTXbrCfEi56r67BpoMX9iJJKMbhjlb0V-x4-EAvtcbbnL83_sEH8NvVEDAVRSaehnlfr0ONkT GY9uoFMqcSxuQcnIsLAagtRmYvwV5jUY-ZA6k9hRFjR&typo=1 -- http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.uscour ts.cod.147273.23.0.pdf
3. https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzgcZDL BXGRNmWZjwA0gNigrm0iTvIpGEMCfmOKzjg1qQB5BcU54tJhmtfmVzXXx3ayD7RSWl9h5newNW NDJm9smvaGVCiCKSx_GKw4Z2iCIfG5A,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/07/22 /50000-penalty-for-filing-a-frivolous-udrp/&c=E,1,c96-Hl6Rr0cVRBLGelVVrPkR Yuec5n9wX2n5FsHf6DWxGUdpG-veEYtY2rb4yo_rYMhVTxrG1bZ37fd1A70mwZs7ectA9nxVRf 1IrhBQnX-tXBEaOPEOaj4,&typo=1
4. https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm51Ib qbsVYsieh6FzZACt_baEGvJeMK91hZnKxi6vjcKl7viHcSygfQN1CVQ81cAGxr56mG05TSsexK 9_PO7H4FzPIARjR8QV1WMPORfD8e4,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/deta il.aspx%3fg%3d5899d5f9-3bbc-416e-a9a5-7233a147b62c&c=E,1,ibAAgsQu4XKMVdRe1 Vuv64tKkxpzawDxcA-kjzUr9fKhyOV3JcyVj-kXCoVbDD6smUdkMkJY5Vi3AAyr-XQiHGxG44T wbnDpVipyHVjDFiuohck,&typo=1 https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurisprudenc es/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/&c=E,1,d29bBL DOvi4Vh5eHNhyAOGuAZfN5enSzi2q2AFiGeZhCezp-jwMcXrK30_R5Wqe-H0ffiDDy7KlgB3xm GDL7YHKWufKtzJPQAzDFviCnO_5AWD-5fWo3bGGk&typo=1 https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/s earch/text.jsp%3fcase%3dD2013-0835&c=E,1,hdXQJijwb0NiNbvoi2crydNmZ2JyqinuJ afCimy24iQ3pjqwVPKji95HeSyT3Fg3iFzW8wZAs8Ii458dNvQEYyilsm6n9MZykPVLyv1ALK4 FywjpoKe_x9c1WUfl&typo=1
Perhaps similar cases exist for the URS (although, less likely, given that new gTLD domains tend to be worth far less than .com domain names, and thus it makes less economic sense to invest money in legal fees to defend them).
Let's check back at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/c hallenged/&c=E,1,g29GkDAAUCauVVQL4VCRL3ImHpynA4DsIhSZepwHtOTLk8K2WohfKoubt o77tXAyimx-vEjzdCnUIMUuHFUmW-vGHIyhB4GMd3BaqLvuZDPTpVlj74c3&typo=1
and see if those 4 cases above get added.
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj6kIM Bk1q0UKM_qsgMtdaLWngHgdpEjHJEIhGFl9qmEl3FZXUOKAeLPsgW5u4K4oM_oaaQhTJVMpDts HsgujioK_XvWF3HO1BnJUzmUNuwN9SoDcYw,,&typo=1
On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann@leap.com> wrote:
Well said, Rebecca.
Furthermore, if a low level of appeals is an appropriate metric, then I would think that the low overall usage rate of the entire URS procedure, relative to the number of domain names registered, should also be an appropriate metric. The same would apply to the very low sunrise usage. That would support the elimination of the sunrise and URS procedures, given their low adoption.
The fact that just 33 survey responses in the INTA survey were considered by some here to be very powerful evidence (LOL!) speaks for itself.
Unlike those 33 survey responses which purported to be statistically representative of all TM holders worldwide and valid, we can review the entire universe of URS decisions (thus it's no longer a *sample* of a larger population, where getting a reliable sample might be hard; it's the *entire* population being studied).
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_b Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc0 F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca <rtushnet@law.harvard.edu> wrote:
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.
In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.
Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of BECKHAM, Brian <brian.beckham@wipo.int> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Thanks Terri, Julie,
Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a ³subjective and qualitative review² of URS decisions with respect to the standard of evidence.
Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be ³no².
If on the other hand, there is a significant instance of appeals, that may merit the type of ³review² proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible ³improvements² going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all,
Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar
** Please let me know if your name has been left off the list **
Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
Main wiki page for the working group: https://community.icann.org/x/wCWAAw
Thank you.
Kind regards,
Terri
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