George: I prefer (and concur in) Greg’s interpretation based on my knowledge and experience (34 years of practicing law, although I had to settle for Georgetown Law (a little further down the ranks than Columbia, but located a little closer to the USPTO and in a city where laws and regulations spawn perennially), where I was also on the Executive Editorial Board of a law journal and published a note on advertising regulation in China. Working on K Street in Washington does give you some experience at seeing how the policy-to-rule sausage is made whether statutory or regulatory – and how much can go wrong without checks and balances, leaving final versions much different than proposed or intended. I think there is much better use of your time and ours focusing on almost 20 years guidance in actual decisions that have worked fairly well. This is better than “reading between the lines” to speculate on the winner in settlements and treating aborted dec actions as cause for celebration. Better instead to look at exemplary cases and decisions to suggest policy changes to improve the summary processes of UDRP and URS and give panelists, practitioners and parties the tools they need to achieve justice while keeping the Internet a stable and commercially viable platform for business and expression. This artificial political range war between rightsholders and domain investors is insincere and destructive. If UDRP fails or is rendered ineffective you could be forced to protect your name or work in a distant court you can’t reach but whose citizens and their conduct can reach you, your reputation and your customers online. Best regards, Scott Please click below to use my booking calendar to schedule: a 15-minute call<calendly.com/saustin-2/15min> a 30-minute call<calendly.com/saustin-2/30min> a 60-minute call<calendly.com/saustin-2/60min> [cid:image001.png@01D3E08A.25E41690][IntellectualPropertyLaw 100] [microbadge[1]] <http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com> From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Greg Shatan Sent: Monday, April 30, 2018 1:39 AM To: George Kirikos <icann@leap.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] [Ext] Re: REMINDER re: Nominations for RPM Working Group Co-Chair George, On Sun, Apr 29, 2018 at 5:17 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote: Hi Greg, The WIPO website refers to "orders and decisions", and makes no distinction (the one you want to invent) to bar consent orders or consent decisions from their list. The title of the page is "Select UDRP-related Court Cases." "Cases" are generally understood to be decisions (i.e,. judicial opinions). See, e.g., https://en.wikipedia.org/wiki/Legal_case ("A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process.") When law schools teach by the "case method" and use "casebooks" they are using judicial opinions. See https://www.princetonreview.com/law-school-advice/case-method<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.princetonreview.com%2flaw-school-advice%2fcase-method&c=E,1,8hCbCKOv8WsYFVDM87iTD7V3K7O8geB6O5LzMivZSQ9AIu5srX3YcuSkKYVJZGWBzdJj7DCkdpxwZdUvB83gc0Png2c29oulgEWT96gjKtul5GtlOg,,&typo=1> Rather than "inventing" things, I am offering interpretations based on my knowledge and experience (32 years of practicing law, after graduating Columbia Law School, where I was a Harlan Fiske Stone Scholar and Editor-in-Chief of a law journal). You are offering a different interpretation. I'm comfortable with mine. Others can decide which interpretation they prefer. As for "inventing" stuff -- there's no such thing as a "consent decision" (at least not in US law or any law I'm familiar with). Not only is that your invention, that would be an oxymoron -- a decision is a final opinion by the court, so consent cannot be part of it. There are three "orders" on the page; 2 are default judgments, which do count as judicial opinions. The third is the Law Society order. As noted earlier, WIPO did not hesitate to already include one (for lawsociety.com<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2flawsociety.com&c=E,1,Q5R7...>) in its collection, a long-established precedent that is demonstrable proof in how they view their own list: http://www.wipo.int/amc/en/domains/challenged/<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.wipo.int%2famc%2fen%2fdomains%2fchallenged%2f&c=E,1,a6T_TcZusZMS4xYqQ9RMa9GZS5r3k8vlXCSVZ_QLeRmNRo2QV1PZB_qioCfICwFuCVxRaLeqUY0aDI82XGsFDaoTnMwuekyPHMZIcMTFXGCCwOM5&typo=1> You can call this a "long-established precedent that is demonstrable proof in how they view their own list." To me, it looks like an anomaly that proves nothing. There's certainly no way to deduce intent from this posting. More than likely it was a mistake, not something intended to be "precedent.". Given that they've never posted another settlement in spite of being informed of them *repeatedly* (although I bet all from the same source...), I'd say that not listing those settlements better demonstrates how they view the list. But why speculate? Let's ask Brian Beckham to tell us how WIPO views the list. You claim "WIPO is offering case law", yet where's the "case law" in the lawsociety.com<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2flawsociety.com&c=E,1,zFNA...> court order? :-) Nowhere, unlike every other item on the page, which is why it is an anomaly that probably shouldn't be there. The phrase "case law" doesn't appear on that page, either, another invention by yourself as to what that list is supposed to represent. See above. "Case law" means "law established by judicial decision in cases." This is, with one exception, a list of cases that are judicial opinions, establishing case law. I believe I'm making a very reasonable inference regarding the list -- that a list of "Court Cases" is intended to be a list of case law. Indeed, while you claim these are "meaningless", they certainly mean something to the *registrar*. Remember, the registrar would have kept the domain in limbo, awaiting the outcome of the court case (which in some cases challenged an adverse UDRP for the registrant, which would have meant a transfer of the domain to the TM holder), without these orders to the contrary. The consent order certainly carries the same weight to them as any other court order. This is consistent with the case being meaningless beyond the parties involved. Although I thought I was clear enough, I was referring to the value of the case beyond those involved in it. The registrar may not be a party, but they are clearly involved, as the entity holding the asset in question. Indeed, there have been occasions where judges *refuse* a proposed consent order or proposed settlement by parties. (search Google for "judge rejects settlement" without the quotes) The judges don't just blindly rubber stamp them. I'm well aware of that, but these are edge cases, compared to the huge volume of settlements that are approved (or don't even get reviewed by a judge). A rejection happens when the court sees a settlement that doesn't serve justice or seems fundamentally unfair. As long as the settlement seems reasonable, the courts do essentially rubberstamp them (I never said they did it blindly...). If the parties wanted to, the complainant could have simply withdrawn the case, without any order. But, no....these orders went further then that and memorialized various things (e.g. the money owed, where the domain name should end up, etc.) within the court order. These things would all be memorialized by the parties in a Settlement Agreement between the parties, whether or not there was an order. Clearly, in these cases the parties didn't want to simply withdraw the case. One or both parties wanted the order. Typically, courts issue orders for settlements because the litigants have asked them to. As noted previously, this can make it easier to enforce the settlement if one party fails to comply. If the settlement is completely "out of court", the party seeking to enforce would generally need to bring an entirely new action. The fact that the settlement is subject to an order, does not change the fact that it is the parties that are memorializing these things, then providing the order to the judge. (I'm not inventing this; this is how it works, in my experience. Though judges will rewrite orders they don't quite like, the order is produced by the parties.) As for where things "originate", recall lobster "was considered a mark of poverty or as a food for indentured servants" https://en.wikipedia.org/wiki/Lobster#History yet now is treated somewhat differently. "Boom goes the dynamite" may have had dubious origins, but the phrase was used correctly in the prior email, as it has caught on and since become a popular way to indicate a "pivotal moment": https://en.wikipedia.org/wiki/Boom_goes_the_dynamite Clearly, you think there was a "pivotal moment" in your email. In my view, it was closer to the original circumstance in which "Boom goes the dynamite" was used. You are entitled to your own opinion, of course. While you might look down upon and snicker at things that have humble origins, others do not. Not sure where this came from. I certainly didn't say anything remotely like that, nor can I see anything I wrote that could be interpreted that way. But clearly, I do not see the world through your eyes.... Best regards, Greg /<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.leap.com%2f&c=E,1,M-S...> On Sun, Apr 29, 2018 at 3:30 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:
George,
A “clown car” is still a car and a crushed car is still a car, but neither will get you where you want to go. In a narrow semantic sense, you are correct, up to a point; the word “order”’appears on the document. But in a substantive way, you are still incorrect. A settlement is not a decided case, no matter how it’s labeled. A settlement that is “ordered” by a judge has no more value than a settlement that is handled out of court, except between the parties (if the parties settlement is recorded with the court, it is generally easier to come back to the court to enforce the settlement). For the rest of the world, these are meaningless in terms of understanding how the court viewed this case. These are not “judicial outcomes”; the judge had nothing to do with it.
There is certainly nothing in the settlement documents that would support the assertion that the “UDRP decisions are likely highly deficient.” It would be misleading to leave people with that impression.
Whether a settlement is “of interest” is irrelevant. WIPO is offering case law, not a list of all court activity. One swallow does not make a spring, and one settlement listing does not make “long-established precedent.” (Nice try, though.) Why WIPO listed one settlement among the cases, I don’t know; but it proves nothing about the intended scope of the list. It certainly doesn’t prove that everything i’ve said is wrong. Indeed, it doesn’t prove that anything I’ve said is wrong. In any event, this settlement is not case law, and it would not be appropriate to call it a case (except in a world where a clown car is still a car).
It’s amusing that the one settlement that’s listed is one that was favorable to the Complainant, although the litigation was commenced by Respondent (i.e., the Complainant got the domain in the settlement). So, while it shouldn’t be on the list, it is “interesting.” (And no, listing this settlement is not credible evidence of WIPO bias and conspiracy against respondents....)
As for Moobitalk, I did not “concede”; I agreed. I had expressed no prior opinion on the subject. But if calling it a concession makes you feel like you won something, I wouldn’t want to take that away....
I’ll stop to note that “Boom goes the dynamite” originated in possibly the worst and most embarrassing college TV station sports newscast in history. One mistake followed another, but the beleaguered student broadcaster was able to finally use his signature call of “Boom goes the dynamite.” The segment was so exceptionally, hilariously bad it went viral, and a meme was born. So, yeah, that is probably the right “sound effect” for your email.
Best regards,
Greg
On Fri, Apr 27, 2018 at 7:49 AM George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Greg:
A "consent order" is still an order (just like a "red car" is still a car), and a "consent judgment" is still a judgment even if it's the result of a settlement. Most cases are settled. When a TM holder wins a UDRP complaint, but then is challenged in court, the outcome of that challenge is certainly of interest. Take a look at the outcomes here:
1. Soundstop.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fSoundstop.com&c=E,1,Gw_9...> -- Domain Asset Holdings (domain owner) kept the domain
2. AustinPain.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fAustinPain.com&c=E,1,8ja...> -- "Judgment and Permanent Injunction" -- domain owner keeps the domain, and also gets $25,000 - "the NAF Order in the UDRP proceeding is hereby set aside"
3. SDT.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fSDT.com&c=E,1,jb8CsaFobk...> -- Telepathy (domain owner) keeps the domain, and gets $50,000 paid to it by the initiator of the UDRP; "Consent Judgment and Permanent Injunction"; "Accordingly, it is hereby Ordered and Adjudged"
4. Moobitalk.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fMoobitalk.com&c=E,1,NkR4...> - you concede
Folks would be misled by simply having the UDRP decisions appear at NAF/WIPO, making it seems as if they're the final outcome, the final word, when they're not. By knowing these cases exist, others can go to the actual pleadings, and learn something (in particular, that the UDRP decisions which were rendered are likely highly deficient, given the judicial outcomes).
Furthermore, WIPO has *already* listed a case, the one for LawSociety.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fLawSociety.com&c=E,1,DDW...>:
S.H., Inc. v. The Law Society, Case No. CV10-0248MJP, United States District Court for the Western District of Washington, July 19, 2010
which was *also* the result of a settlement (a consent order) [boom goes the dynamite -- I really need sound effects for these emails!]. That precedent further reinforces that everything you said is wrong --- to be consistent with their long-established precedent, they should be adding all the cases.
Nice try, though. :-)
Q.E.D.
George Kirikos 416-588-0269 http://www.leap.com/<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.leap.com%2f&c=E,1,xixNLVy-ncxFSYyfrjOejt7FHKVIa1PiKG4inZDam1TkOybAXmCqnL_SWm8W7NCJmN6K6PV4C7-sA5mrg6AVR5JEE8jN65aUv4NTa_TY&typo=1>
On Fri, Apr 27, 2018 at 1:04 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:
Soundstop, Austin Pain and SDT are all settlements. The WIPO page is entitled "Select UDRP-related Court Cases," which they specify as "orders and decisions." As settlements, they really are neither court orders or decisions. The court just rubber-stamped the private agreement of the parties. There's nothing wrong with that, but there's no judicial value in these actions. They provide nothing a third party could rely on, set no precedent, apply no law and make no law.
These are not "successful challenges" in the sense that a court actually considered the merits of the case and rendered a decision. They may be favorable settlements to the respondents, but they do not represent success in court in the way that a "case" does. (In law school, when students are "reading cases" in law school, they are reading decisions; when a lawyer says she has a "case on this point," she is referring to a decision.) A s such I wouldn't consider these "cases" at all for this purpose.
Also none of these are relevant to "the other side of the coin, abuse of the process, reverse domain name hijacking, and the court cases that are required to achieve justice." Hopefully, nobody who read this thread actually thought that these (non)cases represented any of those things, or thought that WIPO was biased and engaging in a cover-up by "failing" to post these settlements. (This seemed to be the undercurrent of the argument, but perhaps I'm reading too much into it.)
In other words, WIPO did the right thing with regard to Soundstop, Austin Pain and SDT.
Moobitalk is different -- it is an actual court decision (indeed, two court decisions), which I think would be of some interest to those looking for court decisions reflecting the outcome of judicial challenges to UDRP cases. In this instance, I would join George in requesting (respectfully, in my case) that WIPO post the decisions in this case on the "Select UDRP-related Court Cases" page.
Again I should note that Moobitalk doesn't appear to demonstrate "the other side of the coin, abuse of the process, reverse domain name hijacking, and the court cases that are required to achieve justice," and also note that none of this is relevant to Brian's fitness or appropriateness to serve as Co-Chair of this WG. For that purpose, this is a "frolic and detour."
Greg
On Tue, Apr 24, 2018 at 3:30 PM, claudio di gangi <ipcdigangi@gmail.com<mailto:ipcdigangi@gmail.com>> wrote:
George, all,
Personally, I don't believe WIPO is doing anything wrong by not publishing your specific list of post-UDRP cases, which is not a requirement for Providers. From my perspective, it looks like they have posted some of these cases as a nice gesture to the community.
The webpage on which these cases are published clearly states these are "select" cases and there is no intent to create a comprehensive, updated running list of all post-UDPR actions.
Moreover, in taking a quick glance at some of the cases you highlighted:
<Soundstop.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fSoundstop.com&c=E,1,W0ayW-FP9koU7BG44D9-IOQs9I6GO4KNgvPCTblk6vd8QdN6mJip0SFYnHbyJ2VFtLK-JENAJKAFCBPW3jgc4IIZ9MOW3oDgsYh5FV8FpstM5SAIen9H7A,,&typo=1>> - the court case settled; it doesn't appear the court issued a holding that is generally applicable to other UDRP proceedings.
<sdt.com<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fsdt.com&c=E,1,KQWnlhqXuMfpQw2Rnkfkz2gkJ4hXSWFYEdg53gqc76Ho3Z345StVuxSrN3yUEWH1qoMpyQRtlMN4Fuv6Wyze4LFDabhOo6UCQbd2icsVG8M8MNguPXkC&typo=1>> - it looks like the UDRP panel terminated the proceeding to let the court case run its course.
<Moobitalk.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fMoobitalk.com&c=E,1,1Wb6TT8n4yESzgOd30lMKB6y9l-BzF68-13PNGDo7zofH_634l8ejYn4saKIvLmQ2WfO-tRpxjjfHnPfceEB7FZfDyyHLnR-7hvsV6mJrWo,&typo=1>> - the decision of the appeals court was based on a legal principle (territoriality) that is not a required element under the UDRP. This seems to be a relatively unique case and publishing this decision may confuse some readers in terms of the general applicability of UDRP jurisprudence.
---
In terms of Brian's nomination, I am very grateful that he is willing to serve and dedicate the time needed to take on this role. As mentioned by Zak and other's, I believe he is preeminently qualified and has the natural leadership skills that will greatly benefit our team.
Hope this helps.
Best regards, Claudio
On Tue, Apr 24, 2018 at 12:47 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
With regards to Brian Beckham of WIPO being one of the co-chairs, I'm relatively indifferent, as long as the co-chairs comply with the working group guidelines which place constraints on their behaviour (i.e. neutrality, not pushing their own agenda, etc.). It's meant to be an administrative/clerical task, essentially.
I think Brian would go a long way towards demonstrating his commitment towards that required neutrality if he would get WIPO to update their "Court Challenged Cases" page at:
with cases that have been **repeatedly** brought to their attention in the past, including:
1. Soundstop.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fSoundstop.com&c=E,1,9UNQ...> --
http://domainnamewire.com/2016/07/21/mike-mann-overturns-udrp-decision-court/<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fdomainnamewire.com%2f2016%2f07%2f21%2fmike-mann-overturns-udrp-decision-court%2f&c=E,1,xyXG1aKGoAlP7aEOZF5dY_iOC2n0YK42qCkwhP0LMO9nlO6eqa2NMvAH5DhCrO9UAaSherAZ41-WpShMPy2xB_kEpecVSJjTvkdK_EqzKDH13TNDEQ,,&typo=1> https://domainnamewire.com/wp-content/soundstop-1.pdf<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fdomainnamewire.com%2fwp-content%2fsoundstop-1.pdf&c=E,1,3MGrXkIyIlHu2cAPDagWaopcUYr0E1ZOqplKwg2ZTHxNoeVeZIl9i7qW3TooI6YWJ3id-w5KA3qm1DHJxYngJ0DbQ38o1Prp4HkE5pKF-RbsVwnPg8XA5DyFib52&typo=1>
2. AustinPain.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fAustinPain.com&c=E,1,aDY...> --
http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.uscourts...
3. SDT.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fSDT.com&c=E,1,0CXT5Wev-D...> --
http://domainnamewire.com/2015/07/22/50000-penalty-for-filing-a-frivolous-udrp/<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fdomainnamewire.com%2f2015%2f07%2f22%2f50000-penalty-for-filing-a-frivolous-udrp%2f&c=E,1,EmARBQDPn5sEO3PrOvQLWjZlwIYt8gTrDSO53Ov66a7jGtBoBmX5XFkZNaH_8tYIlJP9cjAH9anqhSj2WTW2vr6LBEgxMuWFd1--I4wi11A,&typo=1> https://domainnamewire.com/wp-content/SDT-settlement1.pdf<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fdomainnamewire.com%2fwp-content%2fSDT-settlement1.pdf&c=E,1,AKargYEbrNGMo4-Caj81Z1v1vIwOfRxHTZ3khTE8pzykqJsfMlI3hwvOV_Q5ycu5-Md2OX7Q2gjem7RaWNxBIF-R19OAnjizVivjyiu0Z4JzxcnQFCfhcGjjBk0,&typo=1>
4. Moobitalk.com<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fMoobitalk.com&c=E,1,miDN...> --
It looks bad on WIPO's part that all of these successful challenges are not being reflected on that page. WIPO is quick to assert "record cybersquatting" exists, yet they fail to mention the other side of the coin, abuse of the process, reverse domain name hijacking, and the court cases that are required to achieve justice. If Brian would get that page updated before an election, that would be wonderful.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.leap.com%2f&c=E,1,imbmxKnD4a0YIA5vv11MHMOVlF6RSHZ1ArudbfPOABGq0HeS32GH7nt_iOyJQBGNar5SqluMxV73toYdQxmpUP_hzfeU3A_rI4uU2uvS49-DzsBB7TM,&typo=1> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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