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WIPO Crowing Again About "Cybersquatting"

Wendy Seltzer

Most of us would be put off if a court issued a press release cheering the number of prisoners its judges had put behind bars or the number of tenants it had helped landlords to evict. That seems antithetical to the neutral adjudication of disputes, and ethical rules regularly decry such "appearance of bias." Yet WIPO seems to think it perfectly natural to crow about its arbitrators' favoritism for complainants against "cybersquatters" in UDRP proceedings. It issued a release that reads like a solicitation for trademark claimants' business, not a promotion of neutral arbitration services:

The World Intellectual Property Organization (WIPO) saw a 20% increase in the number of cybersquatting (abusive registration of trademarks as domain names) cases filed in 2005 as compared to 2004. In 2005, a total of 1,456 cybersquatting cases were filed with WIPO's Arbitration and Mediation Center. This increase represents the highest number of cybersquatting cases handled by the WIPO Center since 2001....

In the 6,349 decisions they have rendered, WIPO panels have found for the complainant in 5,327 (83.9%) cases.

Now it is not surprising that the World Intellectual Property Organization often aligns itself with intellectual property claimants against those representing the public domain, competition, or non-IP claims. It is disturbing, however, that it expresses this bias while serving as a provider of administrative panels for the Uniform Domain Name Dispute Resolution Policy. WIPO is ICANN-accredited to provide panelists for what is supposed to be an "impartial and independent” determination of rights to a domain name.

One might already doubt the impartiality of some WIPO panelists, such as those who decided in past UDRP procedings that bodacious-tatas.com "is obviously aimed at diverting Internet users to log on to the Respondent's site in the erroneous belief that the site in question is owned by the Complainant [Tata Sons Limited]" and that vivendiuniversalsucks.com "refers to goods or services provided by the Complainant [Vivendi Universal]". Unfortunately, this release suggests that not only some panelists, but WIPO as the provider responsible for appointing panelists from its lists, has prejudged all respondents as "abusive registra[nts] of trademarks as domain names."

Small wonder, then, that in administrative proceedings where the complainant chooses the resolution forum, more than 2/3 of complainants have chosen WIPO — a healthy business, at $500-1,250 apiece for WIPO (apart from panelist fees).

By Wendy Seltzer, Law professor
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Re: WIPO Crowing Again About "Cybersquatting" Suresh Ramasubramanian  –  Feb 02, 2006 9:20 AM PDT

If the WIPO wants to take stricter steps than they do on cybersquatters and typosquatters, I am all for it.

How good an idea is it, though, to point at individual bad judgements, and use that to criticize this?

I've had a spammer register a .info variant of my workplace's domain name, and brag on usenet that he was going to "spam! spam! spam!" with that domain name, just because he resented our blocking him.

And there's any number of people in India who go to http://www.indian-airlines.co.in/ or http://www.indianairlines.com/ and want to book a ticket on IC (government owned, lousy domestic airline in india but it has probably the largest fleet and network, and is sometimes significantly cheaper .. so who cares for a < 2 hour flight).  They'd have to look around some to find the actual site - indian-airlines.org or indian-airlines.nic.in

Just one example, say, where I'd be all in favor of chilling effects that cause typosquatters and actual domain name trademark hijackers to get cold feet.

Yes, companies WILL try to muscle in on domain names that criticize them, or belong to absolutely unrelated businesses / persons who still do have a legitimate claim to the domain name. 

That is simply a call for rationalizing / simplifying the UDRP procedure.  Not for scrapping it altogether.

> In the 6,349 decisions they have rendered,
> WIPO panels have found for the complainant
> in 5,327 (83.9%) cases.

So, how many of those 5327 cases were really typosquatters and domain name hijackers registering a couple of hundred similar sounding domains and putting up webpages crammed with a vague attempt at "relevant content" but mostly affiliate banner ads, and nothing else, on those?  Most of them, I hope?

Re: WIPO Crowing Again About "Cybersquatting" Wendy Seltzer  –  Feb 02, 2006 10:40 AM PDT

Thanks Suresh,

You and I probably do not disagree on the cases where a squatter has purchased a domain name for the express purpose of deceiving viewers or extorting money from a trademark holder. I don't think those have a place in the DNS.  UDRP, while flawed, can reasonably order the transfer of those names. 

My point in the post was not to dispute the WIPO decisions but to question the propriety of a neutral making press releases about favored outcomes.  WIPO as "dispute resolution provider, should be in charge of adjudicating the policy ICANN set, not making its own.

Re: WIPO Crowing Again About "Cybersquatting" Thomas Barrett  –  Feb 02, 2006 5:51 PM PDT

WIPO has been busy marketing itself in other ways as well.

I subscribed to a domain news feed from Moreover.  Once a week or so, the daily email is overflowing with headlines of WIPO dispute decisions.

Apparently, WIPO believes that these decisions constitute news.

I don't know if they publish ALL decisions or just those where the trademark owner was victorious.  I suspect its the latter.

Regards,

Tom Barrett
EnCirca, Inc

Re: WIPO Crowing Again About "Cybersquatting" Suresh Ramasubramanian  –  Feb 03, 2006 4:19 AM PDT

Wendy - thanks. Was just setting the stage for a rather more serious question.  Are the faults you see, that need fixing

1. In WIPO
2. In the UDRP
3. In WIPO's implementation of the UDRP

And where would the fix be best applied?

Simplifying and rationalizing the UDRP?

Helping innocent people whose domain names are being targeted by (say) a large corporation, mount a defense of their domain name?

Helping change WIPO processes by providing constructive feedback and suggestions?  Strident criticism probably doesnt work as well in this case as active participation

Their rules are fair enough - and the UDRP, though flawed, is fair enough. It gives considerable latitude to whoever are the arbitrator(s) on a panel deciding what happens to a domain.  And there lies the rub.

Yes, WIPO probably shouldnt as you say crow about "fighting against cybersquatting", but well if 99% of the cases they handle are cybersquatter related ..

Participating and changing some of this from within would be a long, hard slog. But its going to work far better than criticism.

Not defending WIPO either.  And nor am I advocating a no holds barred "trademark rights trump everything else" type policy.  Just suggesting a few other ways, and asking a few questions on how this can be done better and faster than criticizing the process.

Re: WIPO Crowing Again About "Cybersquatting" Chris McElroy  –  May 23, 2006 9:51 PM PDT

Suresh you asked, "How good an idea is it, though, to point at individual bad judgements, and use that to criticize this?"

And without using specific examples, just how would you go about pointing out flaws in the system?

Thats like a guy who robs a bank just once, but does a lot of good otherwise and then someone pointing out that he is bank robber and you saying that is judging him unfairly becuase of all the good he has done.

You also said, "Yes, companies WILL try to muscle in on domain names that criticize them, or belong to absolutely unrelated businesses / persons who still do have a legitimate claim to the domain name."

And WIPO has been assiting them in doing so.

"That is simply a call for rationalizing / simplifying the UDRP procedure.  Not for scrapping it altogether."

I agree, but the UDRP does need to be revised and not just by a bunch of IP lawyers with their own client's interests at heart.

There has been cases where panelists were doing business with the complainants attorneys and they don't consider that a conflict of interest.

Now to your positive post about actual solutions.

"Are the faults you see, that need fixing"

1. In WIPO - Yes and possibly there needs to be rules about conflict of interest when panelists are chosen. Those rules should be so strict as to not allow even the "appearance" of a conflict of interest.

2. In the UDRP - Most definitely in need of a major revision. There needs to be a different approach to creating or recreating it. It needs to be recognized that trademark holders have been given a much broader protection in regards to domain names than even the USPTO gave them when the mark was registered.

However, in addition to rewriting the UDRP, ICANN needs to consider creating TLDs that match the classes that trademarks can be registered in. If that were done, then a trademark holder would undeniably be entitled to the domain name that matches the string of letters in their trademark in the TLD that matches the class the trademark was granted under. They would not be entitled to that string of letters in every TLD ever created through the sunrise period nonsense.

3. In WIPO’s implementation of the UDRP - Pretty much answered.

And where would the fix be best applied? - UDRP based on an ICANN decision about TLDs that match TM classes.

Simplifying and rationalizing the UDRP? - The above would do it or at least be a major good start.

Helping innocent people whose domain names are being targeted by (say) a large corporation, mount a defense of their domain name? - Absolutely needed. reverse domain name hijacking doesn't get a lot of attention but it should.

Back when I was doing a little domain name speculation, I had a friend who had registered a really terrible domain name. Vwheat.com. Virtual Wheat? Well the I and V before a domain name was getting a lot of play for some reason. I can't even figure out what he would do with a wheat website, virtual or otherwise.

Anyway, Volkswagen sent him a letter threatening to sue him if he didn't immediately transfer the name to them. They said it stood for VW Heat and violated the VW trademark even though they had no "heat" related VW ad campaigns or slogans.

I emailed their lawyers back for him basically telling them where they could stick the heated end of the vw and they left it alone. But many companies have teams of lawyers sending out similar threatening letters and people who cannot afford to defend their domain names in court are just turning the names over to them.

And this is considered a legitimate practice because the corporations and IP interests are the ones doing it. Victims of this activity have had no one to represent them at all and they need help.

Helping change WIPO processes by providing constructive feedback and suggestions?  Strident criticism probably doesnt work as well in this case as active participation Constructive criticism has been ignored so far. But I'd be willing to try it again. But sometimes the squeaky wheel gets the grease.

Participating and changing some of this from within would be a long, hard slog. But its going to work far better than criticism. Well neither has worked so far.

Not defending WIPO either.  And nor am I advocating a no holds barred “trademark rights trump everything else” type policy.  Just suggesting a few other ways, and asking a few questions on how this can be done better and faster than criticizing the process. And I applaud your questions and your attempt to get a discussion going on the topic. I'm willing to learn how this can be fixed.

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