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The Non-Parity of the UDRP

The UDRP is obviously not working. Two websites, fundamentally the same (criticism at trademark.tld), two opposite decisions, both within weeks of each other!

A Complainant (Biocryst Pharmaceuticals Inc) initiated a complaint to WIPO about one of my criticism websites (biocrystpharmaceuticals.com). The Panel found in my favour.

Another Complainant (Eastman Chemical Inc) meanwhile made a complaint to NAF regarding another of my criticism websites (eastman-chemical.com). The Panel found against me.

The two websites are fundamentally the same, both websites in criticism of the practices of the individual companies concerned.

As stated above, in the case of eastman-chemical.com, the NAF Panelist found in favour of the Complainant, Eastman Chemical Inc. The Panelist having cited 22 cases from 2000, 7 cases from 2001, 2 cases from 2002 and 2 cases from 2003, none whatsoever from the last two years (2004/5)! The Panelist agreed that I had a legitimate interest but said that I did not have the right to use trademark.tld. The full Complaint, Response and Decision can be viewed at http://www.TheEastmanCompany.com.

As these two cases were principally the same and within 2-3 weeks of each other, yet one decision was in my favour and the other went against me, this goes to prove that the UDRP is not working!

Another thing, Eastman Chemical Inc, would not accept UK jurisdiction, saying that I must sue in Arizona where the registrar is based, as that is the only jurisdiction they would accept. I could not do that, being in the UK. It seems the UDRP is one-sided in favour of Complainants.

When registering a domain name, the registrant must submit to two "mutual" jurisdictions. However, when a Complainant initiates a complaint, they are given a choice of jurisdiction, either between the location of the registrant or the registrar. As the majority of registrars are based in the US, it conveniently falls that if the Complainant is based in the US (which a lot of the time they are), then they would obviously choose US jurisdiction.

The Complainant has the choice whether or not to initiate arbitration.
The Respondent has no choice but to submit to arbitration.

The Complainant has a choice to pick the jurisdiction.
The Respondent has no choice but to submit to the jurisdiction chosen by the Complainant.

In my case, the Complainant has chosen US jurisdiction only, purely because they know I would be unable to initiate a court case in the US within a time frame of 10 days. They are using this loophole in the UDRP as a win, win situation for themselves.

Apparently, it was considered in the drafting of the UDRP, that Complainant's should not have to submit to jurisdictions where they have no connection. But apparently it seems perfectly reasonable that Registrant's (usually an individual) should have to submit to a jurisdiction where they have no connection. What is "mutual" about that, absolutely nothing.

It should also be remembered that corporations are usually based around the world and so have easy access to most jurisdictions. Respondent's/registrant's, who are usually individuals, do not.

There seems to be nothing fair in the UDRP as far as arbitration and jurisdiction goes. Many Complainants simply use the UDRP Policy as a "worth a try" tool, in order to gag any criticism of their company, and this smacks of getting a back door gagging order via the UDRP. If by "luck" the arbitration decision goes the Complainant's way, then they shield themselves against any litigation from the Respondent/registrant, who usually can not litigate out of their own country! The result is the domain name is transferred to the Complainant, even though the Respondent disputes the decision. Talk about a respondent being bound and gagged!

I also contacted the ICANN Ombudsman about the decision in eastman-chemical.com, because I felt it was wrongdoing on the part of the Panelist, having not based his decision on any recent cases (i.e. from the past two years) and having completely ignored the important recent court ruling in Bosley Medical Institute v.Michael Steven Kremer. Also, as a Panelist, he must have been aware of the ruling in Christopher Lamparello v. Reverend Jerry Falwell, yet chose to ignore it.

Contacting the "Ombudsman" was fruitless because apparantley the ICANN Ombudsman does not have any power to overturn a decision. His words:

The role of the Ombudsman is to review the fairness of actions, decisions, or inactions taken or not taken by the ICANN Board or Staff. In this case, you have essentially asked me to look into a matter involving a dispute between you and your UDRP panelist, and this falls outside of the powers given to me under Bylaw V.

This Office of the Ombudsman does not, as you have hoped, have the power to overturn any decision made during a UDRP process.

I will be closing my file into the matter at this point.

What is the point of an Ombudsman with no power? Is this just an empty gesture from ICANN?

Take a look at the full saga regarding Eastman-Chemical.com at http://www.TheEastmanCompany.com. (Registered through one of the very few UK registrar's this time)!

By Patel
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Related topics: DNS, Domain Names, ICANN, Law, New TLDs, UDRP
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Re: The Non-Parity of the UDRP Karl Auerbach  –  Sep 22, 2005 9:08 AM PDT

Do not forget that the UDRP was railroaded through an an ICANN that was, at the time, incompletely formed.  There were many affected parties who had no say whatsoever in the formulation of the UDRP.

Moreover, the UDRP itself is a tool that is intended to promote trademark rights over other rights.  Consider that the UDRP is available only to those who claim that their trademark has been impugned.  Those who consider the name of their god, the name of their city, the name of their labor movement, the name of their children, or even their own personal name has been impugned have no ability to use the UDRP as a tool to remedy that harm.

The UDRP exists only because the trademark industry wanted a vigilante mechanism to bypass the rules and fairness of the established legal system.  The UDRP system is "inexpensive " to trademark owners precisely because it sheds all the procedural and substantive mechanisms that have grown in the real legal system to promote fair decisions.

As for ICANN's ombudsman - what a joke that is.  ICANN's board members are obligated to inquire into the proper behaviour or the organization. Do they?  There is no evidence of it.

Re: The Non-Parity of the UDRP Daniel R. Tobias  –  Sep 22, 2005 4:56 PM PDT

Though, if you plan on setting up a site to provide critical information about a company, CompanyName.info would be a more appropriate address than CompanyName.com, since you want to show that you're there for info, not to commercialize it.

Re: The Non-Parity of the UDRP Howard C. Berkowitz  –  Sep 28, 2005 11:46 AM PDT

Subject to outright fraud and libel, where some legal system has jurisdiction, criticism is a reasonable expression of free speech. I am troubled, however, both pragmatically and ethically, by the use of an unqualified trademark as part of a criticism page name.
Pragmatically, I may be considering doing business with some [trademarked] entity.  As part of my due diligence, I eagerly want to find critical comments, if they exist, about that entity. If it's a random matter if the trademark forms the owner's site or that of a critic, how do I systematically look for criticism? Is the critic doing his own cause a disservice by using trademark.tld rather than trademark_criticism.tld?
Ethically, I have a problem with deceptive naming. We've all encountered social engineering and trojans that tell us to link to m1cros0ft.com.  That's fairly transparent to the experienced user.
But let me take one of these examples: Eastman_Chemical.com, or some variant such as Eastmanchemical.com. In an existence long ago and far away, I was a biochemist.  When in college, I had various jobs ranging from chemical stockroom assistant to research technician. Let me clone myself, in that role, into the present — back then, we not only had no Internet.  If I needed to order some 5-hydroxyindoleacetic acid, I needed to look through paper catalogs. Often, the principal investigator, once a project was started, preferred to get a chemical from one vendor, to minimize process variations.
So let us say that Professor Smith tells me to order some 5-HIAA from Eastman Organic (at least, that's the name I remember). Is it completely out of line for me to resent, when I try to go to the company's website, that I find myself in the midst of a protest, and have to explore Eastman_organic, etc.? Is that not a very limited denial of service?
Let us say, however, that Professor Jones wants to select a vendor, at the start of a project. Eastman, Aldrich-Sigma, and Calbiochem (if they are still around) are all candidates. She may very well _want_ to find any criticism of these sites.  Is it not ultimately useful that protest sites are as equally easy to find as the trademark owner's site?  Is there no advantage, to the critic, to frankly naming a site Eastman_Chemical_Criticism.tld?

Re: The Non-Parity of the UDRP Patel  –  Sep 28, 2005 1:24 PM PDT

In Eastman's case, guess who owns such criticism domain names as eastmansucks.com, eastmanchemicalsux.com, eastman-chemicalsucks.com, eastman-chemicalsux.com, eastmanstinks.com, eastmanchemicalstinks.com etc, etc.?
Eastman themselves is the answer!

By your theory, I have more right to such domain names and Eastman has no legitimate right to those domain names because they obviously do not intend to criticise themselves but they are in fact warehousing those domain names to shield themselves from criticism.

Another point.  It is easy for you to say that someone might be searching for trademark-criticism etc, the facts however are that the Internet is "controlled" by search engines, a few are extremely powerful and it has been known for websites at addresses such as trademarksucks.tld etc., to be pushed back.  By using trademark.tld, or as close as possible, this prevents such action and people can access criticism much easier.

Searching for criticism of a company is extremely difficult.  You usually find such websites by accident whilst searching for something else.  This is not coincidence, this is what "push back" is all about.

Re: The Non-Parity of the UDRP Howard C. Berkowitz  –  Sep 28, 2005 6:37 PM PDT

You suggest that Eastman has no right to critical domain names, and you do because you are critical.  I disagree. The criticism names are up for grabs, but I will contend that it is as deceptive to grab the basic corporate name as it is to phish for micr0soft.  I have never found it especially difficult to find critical adjectives to add to a word or phrase.

You say "It is easy for you to say that someone might be searching for trademark-criticism etc, the facts however are that the Internet is "controlled" by search engines, a few are extremely powerful and it has been known for websites at addresses such as trademarksucks.tld etc., to be pushed back." To this I say, "nonsense", or at least marginal skill in using search engines. I frequently research both positive and critical information on companies, and I cannot ever remember having a particular problem by using appropriate search terms. Now, searching may take me to dull, boring, and lethal criticism in such things as the SEC EDGAR database. Legal and news searching is often extremely productive. Faking the trademark name strikes me as childish.

" By using trademark.tld, or as close as possible, this prevents such action and people can access criticism much easier. " I've never found it an obstacle. 

"Searching for criticism of a company is extremely difficult. You usually find such websites by accident whilst searching for something else." Odd. I've usually found criticism when I've searched using appropriate strategies, including on the major search engines but also on specialized ones such as the legal and regulatory.

"This is not coincidence, this is what "push back" is all about. " I'm not really sure what you mean by "push back".  I have never been handicapped when I feel I need to provide negative feedback to an organization.

Re: The Non-Parity of the UDRP Patel  –  Oct 01, 2005 4:03 AM PDT

Part 1

From your postings, you seem very much in favour of complainant's/trademark owners.  You say that "criticism names are up for grabs", yet you do not think trademark.tld is up for grabs?  Of course it is when it is used as the address of a non-commercial website in criticism of the trademark holder. 

When Eastman registers a domain name purely with the intent to stop criticism, then if I brought a complaint against them under the UDRP, I should win if the UDRP was fair.  The reason why I wouldn't win is that I don't own a trademark but the fact is I do have a right in the trademark in a non-commercial capacity, just as much right as the trademark owner or anyone else for that matter.  However, as mentioned, the UDRP is not fair and I would not be allowed to bring a complaint because I don't “own” a "trademark", so under the UDRP, my rights in the trademark do not exist, even though they do exist in law.  I stand by my opinion that the UDRP is one sided in favour of complainant's and that complainant's are using the UDRP as a back door gagging order because they know they would lose in a court of law.

Regarding your comment of "nonsense" regarding "push back", it all depends on which side of the fence you are on.  You say you have no difficulty in finding criticism sites, well many people do and whilst you say that people may have "marginal skills", skill has little to do with it.  You seem to think that people might not be able to find criticism sites because of their "marginal skills".  Well maybe a lot of people are not fortunate enough to be as "intelligent" as you are, me included.  The fact remains that you can type into a search engine such terms as eastman sucks, eastman chemical spill, eastman fraud, eastman corruption, eastman lawsuit, v eastman, class action lawsuit eastman etc, etc., and you will not find the criticism information you are looking for, that is not to say that it does not exist, because it does.  You will however get a search return containing many webpages completely non related to the eastman company and some others sponsored/non sponsored links to the said company themselves but a very limited to non existent amount of criticism.  The small amount of criticism you are likely to find is on a membership basis, so again, not readily accessible to the general public.

I would say that push back/exclusion definitely plays a part in search engines.  Any domain name with critical wording attached to it can be filtered in quite the same way as adult content is on the internet, you should be well aware of this.  The general public have a far better chance of finding content critical of the company at trademark.tld because a company would find it near impossible to push that website back without inadvertently pushing their own website back.  I am not saying that The Eastman Company is practicing such deceptive and manipulative behaviour but such low tactics do exist.

Another case in point regarding the pushing back of criticism websites is the case of MontrealConvention.org, also .com, a website which is critical of the practices of the aviation industry.  If you look on the back of any airline ticket, it will refer to the Montreal Convention.  However, type Montreal Convention into any search engine, yahoo for example, and although you would expect to find a website called Montreal Convention at the top of the search results, or at least on the first page, that is not what you will find.  For example, on yahoo, MontrealConvention.org/.com is not even listed in the first one hundred search results!  And before you judge my “marginal skills”, I am at least intelligent enough to submit the url to search engines regularly, and also have the wording in the meta tags, so your theory that push back/exclusion does not exist does not really hold water does it?  Exact title in domain name, regularly submitted, included at the top of the meta tags and not even in the first 100 search results?  Hmmmmm!

On MSN.com, that domain name comes 6th in the search results, However, I would say that it did used to come first, and now 6th but at least on MSN it still shows on the first page. Credit to MSN.

Re: The Non-Parity of the UDRP Patel  –  Oct 01, 2005 4:05 AM PDT

Part 2

You say that "Pragmatically, I may be considering doing business with some [trademarked] entity. As part of my due diligence, I eagerly want to find critical comments, if they exist, about that entity."

In reply, it depends on what is more important "the business" or "the critical comments".

We are not talking about a small firm that you are wanting to check out before you make an internet purchase in order to guage whether or not the goods are likely to arrive, we are talking about publicly traded companies/multi national corporations.

Business is all about cost and money and in general, ethics rarely play a part in making a business decision, let's not kid ourselves about that fact. For example, an oil company spills a few million gallons of oil and you as an "ethical person" will not buy their petrol? Hmm.  If the price is cheaper at the pump than their competitors, the general public will make a point of buying it for that reason and that reason alone.  It's all financial, business is business.

People are generally looking for criticism regarding a company when things have gone wrong, not prior to things going wrong.  If you are dealing with a company in a business capacity, your priority is financial, it is not the health of the ordinary person, again let's not kid ourselves here.  If you are looking to purchase methylene chloride for your business, do you really care about the fact that the company spilled 30,000 gallons of the stuff near a school?  Hmmm.  The general public however do care and they want to know if this has happened before.  This is the reason they are searching for the term, not for due diligence.  Business people have vast resources available to them, the general public do not, that does not mean that they are not entitled to find out about spills, accidents, fraud, criminal fines, of say $11m etc, etc.

Using trademark.tld aids the general public in finding the comments critical of the company because, as mentioned previously, it would be very difficult to push the website back without the company inadvertently pushing their own website back.  Trademark.tld does not hinder a person's search, as seems to be your belief, as when search results are returned, the search results obviously show partial content of the website and it is therefore evident that the website is in criticism of the company.

A point to note, Eastman is playing the jurisdiction card to avoid my legal proceedings against them.  If like you, they felt that I had no right to use trademark.tld, then why are they hiding from me?  I have a case filed against them in the United Kingdom Supreme Court and Eastman are also based in the UK, yet they say they will not accept jurisdiction. Hmmm.  Is it possible that they and their liars, sorry, I mean lawyers, Jones Day, know full well that I am acting entirely within the law and I will sue their pants off all the way the the European Court of Justice if need be, under all sorts of acts, including freedom of speech, human rights etc., etc.

Eastman's practice of simply using the UDRP as a back door gagging order is further evidenced by the fact that they made complainant to NAF regarding my registration of Eastman-Chemical.com, they “won” but avoided jurisdiction.  I then had no choice but to protect my freedom of speech and my legitimate rights in the domain name by registering another domain name, EastmanChemicalCo.com (again, registered through a US registrar, being still a little naive at that time), again Eastman made complaint to NAF, still awaiting outcome but with absolutely no faith left in NAF, I have protected my rights by registering another domain name, TheEastmanCompany.com, through a UK registrar this time, lesson learned!. 

Now, interesting point......, Eastman, in the first two incidences, filed a complaint to NAF within weeks (first incidence) and hours (second incidence) yet they have not bothered to file a complaint regarding the domain name registered in UK jurisdiction?  Hmmmm!

Finally, regarding the non-parity of the UDRP, approx. 150 countries do not have an ICANN accredited registrar, so what is “mutual” about the jurisdiction under the UDRP?  Absolutely nothing because complainant's will always choose the jurisdiction of the registrar's base.  I leave you with that thought!

Re: The Non-Parity of the UDRP Daniel R. Tobias  –  Oct 01, 2005 6:47 AM PDT

I don't think the exclusion of the "Montreal Convention" site is due to any conspiracy by search engines to suppress it, but rather simply due to its poor design.  It uses frames, which is a strike (or two) against any site for search engine purposes.  It also uses crappy, bloated HTML code as excreted by the godawful Microsoft programs you apparently use, including lots of inline JavaScript and CSS which is near the top of the HTML files so it's among the first things the search engines see.  Then you try to make up for all of this natural lack of searchable text by putting in all sorts of blatant "spamdexing", such as long lists of keywords put improperly in the META DESCRIPTION (which is supposed to be for a brief, human-readable description of the site, sometimes output in search engine results, not for keywords) and in "invisible" text in the page body.  It's no wonder the site doesn't index well; it's probably penalized in the search algorithms for this sort of thing.

Re: The Non-Parity of the UDRP Patel  –  Oct 01, 2005 9:47 AM PDT

Thanks for the constructive criticism.  However for such an awful site, it is strange that the website used to rank no.1 on MSN and no.2 on Yahoo.  It seems the search engines had no problem with the site then and it has not changed any.  Also, for your theory to hold any credibility, it follows that the website should also be way back in the MSN search results?  Yet there it is no.6 out of 879,831! Not bad for such as awful poorly designed site that search engines apparently can not read! 

As I said, type in Montreal Convention into Yahoo and it is not even in the first 100 search results, yet type in Montreal Convention baggage limit and it turns up at no.9, however it is of note that the Montreal Convention website itself does not turn up, but in fact the Warsaw Convention website turns up (which incidentally is the same one) but proves my point, the search was for Montreal not Warsaw. Speaking of which, search the same term replacing Montreal with Warsaw and having checked the first 6 pages of search results, nothing.  Yet it came up at no.9 when searching under Montreal.  This proves my point that you are more likely to find what you are looking for by accident.  In my opinion it is the information at this link that is a good enough reason for some to push the website back.

http://www.montrealconvention.org/warsaw_convention/airline_ceo_email_addresses.htm

For such as awful crappy site as you seem to think it is, it receives 50,000+ hits every month, so people obviously think it is alright, and many of them are repeat users.

My argument at the end of the day is not with the search engines themselves, it is with certain companies about their practices.  The search engines are in business to make money, and if they do push websites back for paying clients, they are only doing what they consider financially best for their website/business.  The search engines provide a free service to the public and the content of their website is controlled by themselves as they please.  Businesses are they to make money and there is nothing wrong with that, if a client offers them money for a certain service, then why should they refuse it?.  It is the company requesting the service from the search engine that is acting manipulatively in trying to control information on the internet.  Again, another form of bad practice by certain companies.  Don't forget, these are publicly traded companies, and the public have the right to access vital information about them.

Re: The Non-Parity of the UDRP Howard C. Berkowitz  –  Oct 01, 2005 10:09 AM PDT

You said, "It is easy for you to say that someone might be searching for trademark-criticism etc, the facts however are that the Internet is "controlled" by search engines, a few are extremely powerful and it has been known for websites at addresses such as trademarksucks.tld etc., to be pushed back. By using trademark.tld, or as close as possible, this prevents such action and people can access criticism much easier.

" Searching for criticism of a company is extremely difficult. You usually find such websites by accident whilst searching for something else. This is not coincidence, this is what "push back" is all about.

Again, I find your assumptions about the difficulty of finding criticism a bit strange. On my first try on Google, I entered the search string "Eastman toxic spill OR release OR contamination".  This returned 93,100 hits. Just from the first page summary, quite a number of links referring to contamination by Eastman, from both government (state and EPA) and private sources.

This was hardly coincidence or search by accident. This was basic search engine skill, not using extensive background in chemistry or information retrieval. True, I didn't immediately see sites about "criticism".  Again just on the initial page, finding summaries referring to Eastman as a major polluter aren't exactly compliments from appreciative critics.

Further, you say "I would say that push back/exclusion definitely plays a part in search engines. Any domain name with critical wording attached to it can be filtered in quite the same way as adult content is on the internet, you should be well aware of this. The general public have a far better chance of finding content critical of the company at trademark.tld because a company would find it near impossible to push that website back without inadvertently pushing their own website back."

I agree completely that it may be harder to find critical information if you are dependent on domain names for finding it. DNS was not designed as a system for finding content.  Based on the very large amount of critical information that I retrieved with my very first query, NOT including names with "criticism" attached, it would seem you have different assumptions about DNS and search engines than I do.  The key thing seems to be that I am not looking for critical domain names, but for critical comment.

Again quoting you, "Regarding your comment of "nonsense" regarding "push back", it all depends on which side of the fence you are on. You say you have no difficulty in finding criticism sites, well many people do and whilst you say that people may have "marginal skills", skill has little to do with it. You seem to think that people might not be able to find criticism sites because of their "marginal skills". Well maybe a lot of people are not fortunate enough to be as "intelligent" as you are, me included. "

What does it have to do with "intelligence"? It seems to have much more to do with having the basic understanding how search engines work, at a very basic level. DNS is not designed to do what you want. Perhaps a lot of people might go to the trouble of studying some basic information retrieval before complaining that the answer isn't in DNS.

Re: The Non-Parity of the UDRP Howard C. Berkowitz  –  Oct 01, 2005 10:19 AM PDT

As Daniel Tobias pointed out, part of the problems may be your tools. When I entered the search string "airline fairness OR criticism "montreal convention"" into Google, I got nearly 300 hits, some of which, just from the summary, talked about consumer criticism.  Putting the same search terms into Yahoo, I got 610,000 hits, some of which were obviously irrelevant. The 8th item on the page, however, http://www.aircraftbuilders.com/conf02_02.html, was detailed legal criticism.

What this may suggest is that Yahoo produces lots of meaningless hits while Google is more focused, or that the search strategy you are using is not useful.  As with Eastman, I had no problem finding critical information with a single search, and there was no evidence that the search engines suppressed criticism.  I didn't find any sites named "montrealconvention_criticism.tld", but, again, I was looking for content rather than domain names.

Re: The Non-Parity of the UDRP Daniel R. Tobias  –  Oct 01, 2005 10:29 AM PDT

One source that is being increasingly used by people seeking information is Wikipedia ( http://www.wikipedia.org/ ).  Their article on the Montreal Convention is at:

http://en.wikipedia.org/wiki/Montreal_Convention

It's currently a brief stub, with a small amount of information, but since it's a wiki that anybody can edit, any of you with additional relevant information are free to add it, subject to Wikipedia's requirement of a neutral point of view (in other words, it's not a place for rants about how evil, or great, this convention is, just factual information about it).

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