kivotos-hotel.com - Another stupid decision

[marcorandazza]

You don't need to pass.

A "bona fide offering of goods or services" can't also mean an infringement. Complainant has a trademark. Respondent is using that trademark in a domain name to compete with the Complainant. Absent a defense, end of case.

Moral of the story is *mount a defense* if you have one. This respondent clearly had one, but failed to mount it. Badda bing.

[dvdrip]

This panelist decided the opposite a few years back.
http://www.wipo.int/amc/en/domains/d...2001-0758.html

Maybe a new directive came out, to attract new "clients".
No response = Respondent loses.

[marcorandazza]

It doesn't seem that it was the same issue.

When the complainant makes out a prima facie case, the complainant's allegations are held to be true unless the respondent rebuts them.

In the case you note above, Barbero noted that the complainant didn't make out a prima facie case. I think that his familiarity with the Italian language likely helped, and perhaps if he spoke Greek too, he would have handled the hotel case differently.

But honestly, WIPO gets nothing of any great value from deciding cases one way or the other. Complainant pays a $1500 filing fee. $750 goes to the panelist. The administrative costs must eat up at least $500. That leaves a couple hundred bucks -- not really worth bending their ethics for it, is it?

[dvdrip]

Prima facie depends on the panelist also. One time he sees it as prima facie the other he doesn't. No case is the same but those two are very close.

On one case he visited the website. On the other he "hints" that there is no website.
So 10 days later evidence of the website is gone and he is clean.

$500 for sending a couple of emails and maintaining a website with the cases? Can I be NAF?
WIPO had 2000 cases last year. That is 3 million dollars. 1.5 for WIPO. That is more than enough to pay the 3-4 secretaries and the website/Hosting bill.

A "bona fide offering of goods or services" can't also mean an infringement. Complainant has a trademark. Respondent is using that trademark in a domain name to compete with the Complainant. Absent a defense, end of case.

The UDRP was not intended to resolve complex trademark infringement questions. In addition to a pending court case: No decision.

[marcorandazza]

The $500 isnt for sending emails. Administrative costs include salaries, rent on the property, etc. $1.5 million isn't a whole lot of money.

I know that domainers hate providers ... and I'm the first to call out bullshit when I see it... this WIPO is biased stuff is mere fantasy. If WIPO were biased, they would ban Sorkin and Cabell.

And Davis, and Glas, etc....

Not that Davis or Glas are bad panelists -- but they do trend to the Respondent.

[dvdrip]

Damn, that is 3 out of 4 from my list. Davis is the only one I didn't have.

So maybe the problem are the panelists. Arbitration is not a full time job so it's easy either to not give a damn or favor the big companies that feed them or anything.
Judges are very different species than "panelists".
Either way UDRP is not working. It needs restructuring.

[Makis77]

this is an interesting conversation

the way that UDRP procedure works is not correct, it has flaws that usually favor the complainant. In this case they ought to visit the website and see how it works and then wait for the respodent to send his side of the story

the complainant's allegations are held to be true unless the respondent rebuts them.

I think that his familiarity with the Italian language likely helped

This two quotes show that decisions are not made by solid and written rules but out of personal opinion and pure luck.

[marcorandazza]

If you're a respondent in a UDRP case, Davis will always give you a principled fair shake. However, Cabell will find blindly for you -- unless the domain offends her (Example: http://www.adrforum.com/domains/decisions/96219.htm).

The centre doesn't care one way or the other who wins. The only people who can possibly be biased are the panelists. However, there is no "win" for a panelist who finds consistently for the complainant. The vast majority of complaints seek single-member panels. The only place where bias is built in is on the respondent side.

Most panelists have no deep desire to be chosen again and again. Most of them are full-time lawyers making $300-$600 per hour. A UDRP decision should take about 10 hours to complete. That means they get $75 per hour. It isn't worth it.

On the other hand, if you have a low-paying job and you can get *consistently* chosen by respondents, it can be quite profitable. Sorkin, for example, has been a panelist 256 times. That's almost $200,000 in panelist fees. If you look at his ludicrous logic in many of his cases, it sure seems to be strong circumstantial evidence that he would like to make that $300,000. Cabell seems to have figured that out too.

I agree that the UDRP needs tweaking. Good luck getting ICANN to do anything. However, here are some ways I would fix it:

Initiation of a Complaint:

1) Complaints are filed with just a "notice of complaint" and a minimal filing fee.
2) Respondent gets 30 days to either surrender or give a notice that he intends to challenge the complaint when filed.
3) If respondent defaults or surrenders, domain is transferred without a decision, but domain must remain with current registrar for a certain period of time so that if the respondent had an excusable reason for failing to respond, the case can be reopened.
Next Phase

1) Complainant files formal complaint with $1500 filing fee.
2) Respondent files response with $1500 filing fee.
3) One Supplemental filing to respond to matters in response are allowed as a matter of right to each party.
4) All complaints go to a single-member panel who is assigned randomly or in order (like regular court cases).
5) Winner gets his filing fee back.
6) RDNH has teeth. Complainant found to bring a case that constitutes RDNH must pay the Respondent the respondent's actual reasonable attorneys fees. Failure to follow through means that complainant may not bring another UDRP action until fees are paid.

Appeal

1) Either party can appeal to a three-member panel, which is also randomly assigned.
2) Appealing party must post a bond.
3) Winner still gets filing fee back. If Appellant loses, bond goes to Appellee to cover Appellee's filing fees.
4) If the majority of the panel finds that the appeal was frivolous, Appellant must pay Appellee's attorneys fees as well as filing fees.

Panelists

1) Panelists must handle an equal amount of cases for single-member proceedings.
2) Each party may have one peremptory challenge of the panelist assigned in the initial single-member proceeding.
3) In appeals, each side chooses just like they do now in three-member panel proceedings. Presiding panelists are assigned randomly or in order. Both parties get one peremptory challenge to a panelist.
4) If a panelist is overturned more than a certain number of times in a certain period of time, that panelist shall be suspended from being chosen for appeals for a certain period of time. (This means that extremists on both sides will be filtered out of the appeal process and they will eventually filter out of the process altogether)