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>Date: Mon, 7 Jun 1999 21:20:18 -0400 (EDT)
>From: Jonathan Weinberg <[EMAIL PROTECTED]>
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>Subject: Re: Fwd: [IFWP] Press =?iso-8859-1?Q?Communiqu=E9?=
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>=09Michael, as usual, is spot-on. It's hard to understand why ICANN,
>whose role was supposed to be one of technical management, should take it
>as its job to require registries and registrars to follow a particular set
>of rules designed to resolve "all commercial disputes" over names. On the
>issue of judicial review, here's a fuller explanation (drawn from my
>comments to WIPO on RFC-3):
>
>=09The initial version of WIPO's current ADR proposal was iPOC's
>Substantive Guidelines Concerning Administrative Domain Name Challenge
>Panels. The drafters of the iPOC rules (in the initial and final
>versions) got this one right -- they realized that it would be too hard to
>design a process that would work well in ordinary domain name disputes, in
>which the decisionmakers would have to parse fine points of law and
>balance competing equities. In cases in which reasonable people might
>differ, there's no particular reason to think that the administrative
>decisionmaker would get it "right." One might argue that it's more
>important to get domain-name claims settled than to get them settled
>correctly, but the ADR process won't in fact get domain-name claims
>settled. It will get them settled, rather, only if certain parties win.
>
>=09If a trademark holder (say) loses in the ADR process, it can get a
>second bite of the apple by filing a trademark-law suit against the domain
>name holder. If a domain name holder loses in the ADR process, on the
>other hand, he typically won't have meaningful judicial recourse. At
>least under United States law, he won't be able to file suit against the
>challenger because he will have no cause of action. Imagine that the AAA
>Cola Company brings a challenge against against AAA Software Design, a
>software company of eighteen months' standing on the Net that operates
>aaa.com. AAA Software Design argues, correctly on these facts, that it's
>not infringing the cola company's trademark because there's no likelihood
>of confusion: Consumers won't assume that every URL on the Net
>incorporating the "AAA" string is associated with the cola company, any
>more than they would assume that every URL incorporating that string is
>associated with the software company. If the ADR decisionmaker rules
>(incorrectly) against AAA Software Design, though, the software company
>has no meaningful recourse. Once the domain name is transferred to AAA
>Cola, the absence of any likelihood of confusion will mean that AAA
>Software won't have a cause of action against the cola company under
>trademark law. In other words, the very facts establishing that AAA
>Software ought to have prevailed in ADR will make it impossible for it to
>prevail in judicial review of an erroneous decision.
>
>=09(It may be that the domain name holder will be able to get some
>judicial review in a jurisdiction, such as England, that has statutory
>procedures for review of arbitration decisions. That's hardly clear,
>though. It is not obvious that the ADR process WIPO contemplates would be
>deemed an "arbitration" subject to the statutes, nor is it clear that the
>cyber-arbitration would be "located" in those states, as the statutes
>typically require. In any event, the court's standard of review would not
>be de novo; the court would overturn the ADR only on a showing of
>irrationality or arbitrariness.)
>
>=09As a practical matter, the only way domain name holders would be
>likely to get their day in court following the conclusion of the ADR
>process would be to sue the registry to block its cancellation or transfer
>of the domain name. The plaintiff might argue that the clause requiring
>it to enter into ADR process is unenforceable, so that the ADR results are
>void, and the registry should be barred from effectuating them. Because
>the domain name holder's "consent" to ADR derives from a contract of
>adhesion, such a lawsuit would have significant chances of success in the
>United States. Any system of contracts that leads to such a result,
>though, would be highly undesirable. It is a general point of agreement
>that a domain name dispute resolution system is defective to the extent it
>results in suits against registries, who are neutrals and shouldn't be
>forced to take sides in such disputes.
>
>Jon
>
>
>Jon Weinberg
>Professor of Law, Wayne State University
>[EMAIL PROTECTED]
>
>> ------------------------------
>>
>> Date: Mon, 7 Jun 1999 09:26:59 -0400 (EDT)
>> From: "Michael Froomkin - U.Miami School of Law" <[EMAIL PROTECTED]>
>> Subject: Re: Fwd: [IFWP] Press =3D?iso-8859-1?Q?Communiqu=3DE9?=3D
>>
>> One enormous danger of this expand-WIPO-arbitration strategy endorsed in
>> the ICANN Press communique is that there will not be judicial review in
>> the US (and a few other countries), while there will be in much of the
>> rest of the world. The result will be to put US registrants (and others
>> similarly affected) at a vast disadvantage to the rest of the world.
>>
>> I explained this at some length in my critique of RFC 3. The problem
>> still exists with the scaled-down final report, but I think it can be
>> swallowed in the interest of compromise since the cases are presumably
>> going to be about real abuse and the potential for injustice is thus much
>> reduced. Go to cases where reasonable people can disagree, and it's
>> unacceptably unfair to tell people they have to waive their right to go t=
>o
>> court when others do not. I have yet to see WIPO, ICANN, or anyone else
>> address this issue (and if you are thinking of making arbitration
>> mandatory and binding, which solves the equity problem, try selling that
>> to either the trademark people or the people who think freedom of
>> expression should not be entrusted to arbitrators). To endorse the idea o=
>f
>> wider arbitration, even in principle (if that is the term for doing it in
>> a press release that undercuts the supposedly formal resolution), without
>> addressing this fundamental issue is very troubling.
>>
>> I'd also like help understanding how a generic policy on commercial
>> disputes falls under the jurisdiction of a body that (I thought) was
>> limited to technical issues regarding names and numbers. In addressing
>> this issue, I'd especially like help in understanding how this "technical=
>"
>> jurisdiction will not then be extended to the content of web pages, e.g.
>> copyright or offensive content, especially since in the usual dispute
>> regarding a trademark and a domain name, the law makes the content of the
>> web pages at that DN an essential part of the issue: non-cybersquatting
>> trademark cases usually turn on whether the use of the term causes
>> consumer confusion. This is not an attempt to use some Internet scare
>> tactic. It is a sincere and honest question to which I do not currently
>> see an answer.
>>
>> As a lawyer I see all the signs of a slippery slope here. And please
>> don't tell me that I should put my faith in the Board. I retain a great
>> personal respect for the Board members I know personally. But this is no=
>t
>> about faith in individuals, this is about creating an institution and its
>> legal powers; we always have to assume the worst when doing any legal
>> drafting, and that's doubly true when designing institutions that may las=
>t
>> generations.
>>
>> Critique of WIPO RFC 3:
>> http://personal.law.miami.edu/~amf/critique.htm
>>
>> Commentary on WIPO Final Report:
>> http://personal.law.miami.edu/~amf/commentary.htm
>>
>> On Mon, 7 Jun 1999, Esther Dyson wrote:
>>
>> > My server has been rejecting mail lately (a Freudian slip perhaps!), so=
> I
>> > missed this till now.
>> >
>> > Basically, the sense of the board is that this policy, whatever it
>> > eventually involves, should probably address all (nonpolitical) disput=
>es
>> > over names, not just the "abusive" registrations that WIPO focuses on.
>> > ("all commercial disputes linked" to domain name registrations may be
>> > overbroad, as opposed to commercial disputes over names themselves.)
>> >
>> > Esther Dyson
>> >
>> > At 01:38 AM 07/06/99, Bret A. Fausett wrote:
>> > >Esther -- I'm confused about some of the statements in the ICANN Press
>> > Communique and what weight/accuracy those statements have. Could you cl=
>arify
>> > when you have a moment. The following was posted on ifwp.
>> > >
>> > >Thanks,
>> > >
>> > >Bret
>> > >
>> > >---------------- Begin Forwarded Message ----------------
>> > >Date: 06/04 10:10 PM
>> > >Received: 06/04 10:20 PM
>> > >From: Bret A. Fausett, [EMAIL PROTECTED]
>> > >Reply-To: IFWP, [EMAIL PROTECTED]
>> > >To: IFWP, [EMAIL PROTECTED]
>> > >
>> > >I'm confused.
>> > >
>> > >I just re-read the ICANN Press Communiqu=E9 from Berlin.
>> > >
>> > >In the press release (written by the PR firm, not ICANN) is this:
>> > >
>> > > The Initial Board noted that a uniform dispute settlement
>> > > mechanism was a necessary element of a competitive
>> > > registrar system. The Initial Board noted that the
>> > > scope of this policy should be wider than the cases
>> > > of abusive registration with which the WIPO report
>> > > deals, and ultimately cover all commercial dispute
>> > > issues linked to Domain Name registrations.
>> > >
>> > >That last sentence is not in the Board's resolutions. What does it mea=
>n?
>> > Does it indeed represent a Board sentiment? Was that sentiment unanimou=
>s?
>> > >
>> > >Can someone who was in Berlin (or better yet, an ICANN Board member) s=
>hed
>> > some light on this?
>> > >
>> > >Thanks.
>> > >
>> > > -- Bret
>> > >
>> > >
>> > >----------------- End Forwarded Message -----------------
>> > >
>> >
>> >
>> > Esther Dyson=09=09=09Always make new mistakes!
>> > chairman, EDventure Holdings
>> > interim chairman, Internet Corp. for Assigned Names & Numbers
>> > [EMAIL PROTECTED]
>> > 1 (212) 924-8800
>> > 1 (212) 924-0240 fax
>> > 104 Fifth Avenue (between 15th and 16th Streets; 20th floor)
>> > New York, NY 10011 USA
>> > http://www.edventure.com http://www.icann.org
>> >
>> > High-Tech Forum in Europe: 24 to 26 October 1999, Budapest
>> > PC Forum: March 12 to 15, 2000, Scottsdale (Phoenix), Arizona
>> > Book: "Release 2.0: A design for living in the digital age"
>> >
>> >
>> >
>>
>> - --
>> A. Michael Froomkin | Professor of Law | [EMAIL PROTECTED]
>> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>> +1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
>> --> It's hot here. <--
>
>
>Jonathan Weinberg
>[EMAIL PROTECTED]
>
>
>
>
>
--
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Remember, amateurs built the Ark. Professionals built the Titanic.
