FC: Jamie McCarthy on problems with domain name dispute process

[Declan McCullagh <declan () well com>]

---

Date: Wed, 29 Jan 2003 13:39:31 -0500
From: Jamie McCarthy <jamie () mccarthy vg>
Subject: Re: FC: Federal judge holds Bill Purdy in contempt, gives one 
more  chance
To: declan () well com, politech () politechbot com

declan () well com (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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