Wednesday, Wednesday, November 28, 2001, 1:13:03 PM, Michael Schultheiss wrote:
> Mark Jeftovic wrote: >> >> Does your client have a trademark? Without one I think they may be >> S.O.L. unfortunately. There only other recourse may be to go after >> the old hosting company for damages (but not the domain) >> >> I'm not a lawyer though. > Neither am I. I'm unclear about the trademark issue - from what I can > tell, it may be common law only but we'll be talking to their lawyers > soon and hopefully we can clear this up. They're not opposed to paying > the UDRP fees - I'm the one who thinks it's punishing the complaintant > more than the respondant. As it should. The respondent is being forced to submit to a supralegal process that grants more rights to complainants than any court would under the laws of any country. As a complainant, you would have to bear the cost of taking a case to court, if you even had a case to start with. The UDRP price is much less than that cost for the complainant. The complainant has all the benefits in this case. I wouldn't even waste their money on the UDRP, they need to suck it up and deal with it. They really don't even have a UDRP claim http://www.icann.org/udrp/udrp-policy-24oct99.htm These are the three elements: (i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and You might get this one. (ii) you have no rights or legitimate interests in respect of the domain name; and You will have a hard time proving the respondent has no legitimate rights or interest. They are not in competition with you, and a trademark existing does not automatically mean that no one else can or could have rights in that same string of characters. (iii) your domain name has been registered and is being used in bad faith. But this will be the deal killer. Typically bad faith means that they only registered the domain name to deprive you of it, or to sell it back to you. If they have put the domain to use, and are not competitors of yours, then they have no real bad faith. The system should not make it easy for a complainant to take a domain away from a registrant. It already does that WAY Too easily, and in ways that even the law would not let them get away with. (Yes, I despise the UDRP.) -- Best regards, William X Walsh <[EMAIL PROTECTED]> -- Webcertificates.info SSL Certificates for resellers from $49ea
