Frank Schilling Loses loses generic name on aweful UDRP decision

**Seraphim** · 11-23-2008, 07:41 PM

Originally Posted by PREDATOR

The law is an a s s, so is wipo

www.wipo.com

roflmao

Wipo mi asso. Isn't that Italian?

**Keynes** · 11-24-2008, 07:37 AM

I find the panel's reasoning w.r.t. display advertising particularly disturbing; they are, in effect, arguing that ads create confusion in the mind of the consumer, but the targeting of those ads is under the control of the advertiser in the new Adwords and Yahoo interfaces...

**jberryhill** · 11-24-2008, 11:37 AM

I actually thought he never loses, especially cases like this!

Nobody who has handled a significant number of disputes has won every time. Sometimes unexpected things happen, and that's true with any human decision making process. As far as this domain name is concerned, the end of the story will be quite some time from now.

**nameadvertising.com** · 11-24-2008, 11:50 AM

Why in such cases, the penalty is transfer of property? If the dispute is over ads related to keywords related to TM holder, a warning or even a possible fine will suffice.

In this case, laying claim to ownership of domain is reverse hijacking.

**namestrands** · 11-24-2008, 02:45 PM

I think the case was well argued, the decision however was wrong. The panel seemed prejudice to the secondary domain industry, ignoring the key facts of the case and arguments and finding favour by bias and assumption.

**.h2o.** · 11-24-2008, 06:02 PM

Absolutely Bloody Ridiculous

Somebody please answer this for me: If a generic word such as this can be "infringing" then ICANN has no valid grounds for introducing more extensions galore. Does that mean that no-one can own chillibeans.web? Does Live.web automatically go to Microsoft and does apple.web go to Mr. Ipod?Now this is going to get plain ugly. It seems that all future names already have a pre-designated owner. "This is my trademark. You can't have it. I want to step on everyone's toes because I am a 800 pound gorilla. You are infriging on my intellectual property."

ICANN seems to only want to line their pockets. On one end they want to increase competition. On the other, the want to side with the 800 pound gorilla corps. The are pulling a parodox.

Domainers are seen as the scum of the earth in many of the wipo cases that I read. What gives?

**carlton** · 11-24-2008, 06:13 PM

Originally Posted by .h2o.

Domainers are seen as the scum of the earth in many of the wipo cases that I read. What gives?

You can thank the chronic TM infringers for the bad reputation. Guilt by association.

**dvdrip** · 11-24-2008, 06:19 PM

It's not only domainers that get abused by UDRP. It's also small business users and other personal domain owners. No one is safe as it is. You can own a.com and still lose. Ridiculous.
And all those crappy lawyers saying to clients: offer $1500 for xxxx.com or we will just go to UDRP and get the domain.
I will start suing all the complainants. I will do it from now on.

**MrGoodhost** · 11-24-2008, 07:21 PM

I'd probably type Chili Beans as Chilli Beans, several people would. Never heard of the sunglass company before, but I'd love me some Chili Beans for my Chili - Get in my Belly.

Bogus, it would be different if it were ChilliSunglasses, Frank should keep his domain.

**PRED** · 11-24-2008, 08:38 PM

I have no doubt Mr.Berryhill would win 99% of all cases on a level playing field.
Thing is i also know Frank has wheelbarrows full of cash if need be, but I am right in thinking for this to get appealed it has to go to real court? i.e potential telphone number leagl bills? also does the loser pick up the ticket?

Good luck Frank either way

**fischermx** · 11-24-2008, 09:10 PM

It was a tough case and sounds a bit "unfair" but.... why do we play the fool?
That name was clearly monetizating with the traffic related to the Chilli Beans brand, not the chili, nor the beans, but the Chilli Beans brand.... the traffic source clearly show it. That was what the Panel saw.
And chili, the food, is as I wrote it, with one "l", not two.

However, an interesting note is that searching for Chilli Beans on Google returns a mix of sites half talking about food and half about the brand.... :(

**Biggs101** · 11-25-2008, 05:07 AM

To help protect ones self from such attacks, it is always better to place yourself on higher ground, rather than lurch yourself above the misty waters of parking. Especially if your domain is profiting (or even coming close) from another entity's brand.
Developing is not necessarily the only option. Creating a simple static page with a nice logo (ex. www.bmg.info ) will immediatly take you out of those waters that can suddently become stormy at unpredictable times. Of course, issues could still be raised - but the 'bad faith profit' allegations can never be used against you.

**draggar** · 11-25-2008, 08:25 AM

Originally Posted by jberryhill

Nobody who has handled a significant number of disputes has won every time. Sometimes unexpected things happen, and that's true with any human decision making process. As far as this domain name is concerned, the end of the story will be quite some time from now.

I think I can hear you sharpening your legal katana from here.

Originally Posted by nameadvertising.com

Why in such cases, the penalty is transfer of property? If the dispute is over ads related to keywords related to TM holder, a warning or even a possible fine will suffice.

In this case, laying claim to ownership of domain is reverse hijacking.

Easy - it's better (for the claimant) to get the domain name than it is to have them change the keywords. I think they were watching it for a while, refreshing the screen just for that one infringing ad to come up.

Originally Posted by .h2o.

Somebody please answer this for me: If a generic word such as this can be "infringing" then ICANN has no valid grounds for introducing more extensions galore. Does that mean that no-one can own chillibeans.web? Does Live.web automatically go to Microsoft and does apple.web go to Mr. Ipod?Now this is going to get plain ugly. It seems that all future names already have a pre-designated owner. "This is my trademark. You can't have it. I want to step on everyone's toes because I am a 800 pound gorilla. You are infriging on my intellectual property."

The domain itself cannot infringe. I can legally park Windows.com as long as I have links to actual windows (as in home windows, car windshields, stained glass etc..) but the millisecond a computer related ad comes up, Microsoft can file a WIPO against me for infringing against their TM for their operating system.

Originally Posted by dvdrip

It's not only domainers that get abused by UDRP. It's also small business users and other personal domain owners. No one is safe as it is. You can own a.com and still lose. Ridiculous.
And all those crappy lawyers saying to clients: offer $1500 for xxxx.com or we will just go to UDRP and get the domain.

I agree. While I am against TM and infringing usage, WIPO has become more like a coupon to an expensive domain than actually protecting rights (Hero.com is a perfect example). Large corporations feel they can push their weight around since they can afford $1500 plus attorney fees while the average domainer and small business cannot afford the fees just to defend their rights (my hat is off to Mr. Nissan and his fight over nissan.com, BTW). If I had a WIPO filed against me there is no way I could afford to defend it.

**dvdrip** · 11-25-2008, 09:05 AM

Originally Posted by draggar

The domain itself cannot infringe. I can legally park Windows.com as long as I have links to actual windows (as in home windows, car windshields, stained glass etc..) but the millisecond a computer related ad comes up, Microsoft can file a WIPO against me for infringing against their TM for their operating system.

This is were the problem is. What if I have a magazine about actual windows. Then one day, or everyday, I put computer related ads. What will happen?
Probably nothing. The worst it would happen is that microsoft will ask to remove the ads or maybe sue for damages. They can't come and take your whole business with an out of court arbitration process. Damages will probably be pennies compared to the value of the magazine.

**draggar** · 11-25-2008, 09:10 AM

Originally Posted by dvdrip

This is were the problem is. What if I have a magazine about actual windows. Then one day, or everyday, I put computer related ads. What will happen?

If they catch it, chances are that they'll send a C&D with a threat of future actions. Seeing how adamant they are against TM infringing domains, unless you give it to them, they'll file a WIPO against you. Just look at MikeRoweSoft.com

Probably nothing. The worst it would happen is that microsoft will ask to remove the ads or maybe sue for damages. They can't come and take your whole business with an out of court arbitration process. Damages will probably be pennies compared to the value of the magazine.

Yes, they do have that right and "our" politicians like Olympia Snowe (Snowe bill) are trying to make it easier for them.

Our politicians are favoring to large corporations (and WIPO panelists are politicians, IMO). They'll favor large corporations like Microsoft, Target, Dell, but in the same act, screw over small businesses without even having a fraction of a thought (which, BTW, small businesses are the backbone of our economy, not large corporations).

Also, WIPO panelists seem to be more likely to side with complainant since they are the ones paying (don't bite the hand that feeds you) and owning multiple domains (a.k.a. domainer) is usually viewed as bad faith by them right off the bat.

**dvdrip** · 11-25-2008, 09:14 AM

I was talking about a magazine. Not a domain.

**PRED** · 11-25-2008, 09:17 AM

Frank, you're a working class lad done good, i respect you for it.
Theres every chance you will keep the name. Lets face it, even our Queen over here in England is officially a reverse hijacker, even with all her cash