FC: Jamie McCarthy on problems with domain name dispute process

From: Declan McCullagh (declanat_private)
Date: Wed Jan 29 2003 - 22:47:41 PST

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    Date: Wed, 29 Jan 2003 13:39:31 -0500
    From: Jamie McCarthy <jamieat_private>
    Subject: Re: FC: Federal judge holds Bill Purdy in contempt, gives one 
    more  chance
    To: declanat_private, politechat_private
    
    declanat_private (Declan McCullagh) writes:
    
     > Again I say, if the Eighth Circuit doesn't overturn this
     > craziness, this nonsense, then all of we American Internet users,
     > the pro-lifers, the pro-choicers, the anti-war crowd, the
     > tree-huggers, everybody - we're in BIG, BIG, BIG trouble!
    
    This is three-year-old news.  We've been in big trouble since WIPO
    said that "guinness-beer-really-really-sucks.com .com" was
    confusingly similar to the trademarked phrase "Guinness Beer".
    
    WIPO in that same decision went on to proclaim that even if the
    domain names were not "confusingly similar," they can still take
    away the domain.  Why?  Because you or I might Google on the
    trademarked phrase, happen to notice the *sucks domains, and, out
    of idle curiosity click on those sites instead of the company's.
    
    We are not users, you see;  we are potential customers.  So our
    curiosity is an official reason for taking away domain names and has
    been for three years:
    
         The fact that each of the said domain names in issue in these
         proceedings constitute an abusive, insulting or possibly even
         defamatory statement would in the view of this Administrative
         Panel be sufficient to alert most English speaking users of
         the Internet that the domain name is not the address of a www
         site associated with the Complainant. This was accepted by the
         administrative panel in Wal-Mart Stores, Inc. v. Walsucks and
         Walmarket Puerto Rico WIPO case D2000-0477, in a similar
         case...
    
         In that case however the administrative panel went on to
         consider the next element of the Sleekcraft test and concluded
         that:
    
         "it is likely (given the relative ease by which websites can
         be entered) that such users will choose to visit the sites, if
                               ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
         only to satisfy their curiosity. Respondent will have
         ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
         accomplished his objective of diverting potential customers of
                                       ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
         Complainant to his websites by the use of domain names that
         are similar to Complainant's trademark."
    
    Please note that the Policy which WIPO is bound to follow says very
    explicitly that domain names must be "identical or confusingly
    similar."  They just sling a lot of legalese to reverse the common
    understanding of those words.
    
    Another officially-stated reason for taking away domain names is
    that "Respondent admitted ... that he registered [them] because he
    was angered."  According to WIPO, emotionalism is proof you are
    acting in bad faith.  So I'm guessing Mr. Purdy doesn't have a
    chance.
    
    Does this make your readers mad?  I advise them to exercise a
    five-day waiting period before protesting.
    
    http://yro.slashdot.org/article.pl?sid=00/10/31/1719237
    http://arbiter.wipo.int/domains/decisions/html/2000/d2000-0996.html
    http://www.icann.org/udrp/udrp-policy-24oct99.htm 
    
    
    
    
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