another misguided WIPO decision

[keyser]

"jeux en ligne" is the *real* generic for "online games".
"jeux online" is a mix "FrenchwordEnglishword".

Slight difference :yes:

 

[DNQuest.com]

"Consequently, the Expert considers that the use of the litigious domain name by the Defendant intervened in violation of the principle of honesty in the trade."

This is from the ruling, not my words. This is the reason stated for transferring the domain. WIPO is NOT a TM court, it is a domain court. The plaintiff obviously showed that he has rights to a name, the defendant clearly showed he did not. As I stated many times before, domainers are too hung up on TM law, they don't realize what the actual criteria is for WIPO. It seems the defendant did use the domain in bad faith and he screwed himself by playing silly games instead of developing a non-competing site.

this guy (complainant) registered jeuxonline.cc first, later named a company jeuxonline. only much much later did he actually transfer the domain to the company named jeuxonline.

so what, he still proved that he has some rights to the nae, does he not???

A cunning plot of evil and unfair competition: Doing nothing. And since when did jokes become unfair competition?

Also offer it for sale, or did you forget about that. Also, not using the domain does nto establish your rights to teh domain. As I said, if he developed it and establish rights to teh name, could have turned out differently. This line of reasoning is strong in UDRPs.

who knew of the existing company
So what. Obviously trying to construct a bad faith trail here...

Umm, registering a known TM, seems like something fishy there. The defendant did not even dispute this fact.

There is not any doubt that one domain name, even generic, revêt a consequent commercial value, in particular when an activity is already deployed under the same very close domain name, differing only by a gTLD.

This is what the decision states about "generic nature of the the name. This is hard to read,but it does not say the term is generic, it seems he is saying "IF" the name was generic.

 

[typist]

I am not sure if you fully understood the original decision. E.g. the following about the generic nature of the domain name:

Il ne saurait être contesté que les termes “Jeuxonline” adoptés en tant que nom de domaine pour promouvoir un site Internet proposant des jeux en ligne revêtent un caractère générique.

Leur protection ne peut donc qu’être limitée.

En effet, en vertu du principe de la liberté du commerce et de l’industrie, il ne peut être reproché �* un concurrent d’utiliser �* titre de nom de domaine, des termes appartenant au langage courant.

C’est d’ailleurs en ce sens que s’est prononcée la Cour d’Appel de Paris le 25 mai 2005 s’agissant des noms domaine <servicesfuneraires.fr> et <services-funeraires.fr>

Umm, registering a known TM, seems like something fishy there. The defendant did not even dispute this fact.

It's a simply a mistake if a descriptive mark like "jeux online", without any claim to fame whatsover, is protected. It's unlikely that any regular court would agree to your reasoning.

 

[DNQuest.com]

Translated, this is the defendants arguements, not the panelist dicusion...

To justify of this development which would be made in the absence of any violation of the former rights called upon by the Applicant, the Defendant makes the point that the terms “Jeuxonline” would be generic and, consequently, with the provision of all.

It would not know disputed being that the terms “Jeuxonline” adopted as a domain name to promote an Internet site proposing of the plays on line are of a generic nature.

Their protection can thus only be limited.

Indeed, under the terms of the principle of the freedom of the trade and industry, it cannot be reproached a competitor for using as domain name, terms belonging to the current language.

It is besides in the sense that decided the Court of Appeal of Paris on May 25,2005 being the names <servicesfuneraires.fr> field and <services-funeraires.fr>.


This is what the panelist said in response...

However, it is advisable in the species to consider the context in which the recording of the litigious domain name intervened.

This recording was in the beginning a “joke” between competitors of the consent of the Defendant.

There is not any doubt that one domain name, even generic, revêt a consequent commercial value, in particular when an activity is already deployed under the same very close domain name, differing only by a gTLD.

However, the fact for the Defendant of recording in all knowledge of cause the denomination adopted by its principal competitor and of refusing to restore to him, and this with an aim, in the long term, of benefitting unspecified from it, constitutes an unfair behavior.

Consequently, the Expert considers that the use of the litigious domain name by the Defendant intervened in violation of the principle of honesty in the trade.

Quote:
Umm, registering a known TM, seems like something fishy there. The defendant did not even dispute this fact.
It's a simply a mistake if a descriptive mark like "jeux online", without any claim to fame whatsover, is protected. It's unlikely that any regular court would agree to your reasoning.

My reasoning... that's funny, I thought it was WIPOs reasoning. And this is not the only case that was decided this way. Again, UDRPs ARE NOT TM cases, but rather establishing rights or greater rights to a domain. You (and many other domainers) seem to fail to understand that portion of reality. This has nothing to do with what I think is right or wrong, I am just presenting the truth here.

 

[typist]

My reasoning... that's funny, I thought it was WIPOs reasoning. And this is not the only case that was decided this way. Again, UDRPs ARE NOT TM cases, but rather establishing rights or greater rights to a domain. You (and many other domainers) seem to fail to understand that portion of reality. This has nothing to do with what I think is right or wrong, I am just presenting the truth here.

Ok, you missed my point again, let me try to spell this out:

A court couldn't care less about your "truth", "reality" and wipo reasoning.
Courts make decisions based on facts and the law. Your "truth" here could just as well be untrue in a court of law.

What I initially wanted to point out is that it's unfortunate if UDRP strays too far away from the law. Ideally, UDRP decisions should be based on a reasoning which make sense in a regular court as well.

As long as they don't, they continue to create an "alternate reality" which puts everyone in an undesirable situation:

A few people who care about principles and can afford the expenses will take such matters to court, as well as those who are fortunate to own domain names earning enough to justify the expense.

The unfortunate majority who can not afford to go to court will be left with a UDRP ruling - which could have been overturned in court at a cost which is not worth it.

This is obviously not a very desirable situation (***and it doesn't matter how "real" your claims are***).

I don't know why you are so obsessed with describing rules and claiming they are the ultimate reality. Remember, they are only rules, not laws of nature.

I'm afraid if everyone would think like you, flawed reasoning would never be challenged, and we'd still be living in caves.

 

[britishbulldog]

I lost Cheaphotel.net to Cheaphotels.com, although they redirect the traffic to another domain,wipo udrp are a farce and should be outlawed ! i had a site but no you are not allowed competition according to wipo and udrp.

 

[DNQuest.com]

"My Reality"??? I am sorry to set up the whole UDRP system that way it is.... ugh

Anyway, we will go in circles now, but the name of the domain IS a name of a company, hence they have rights to the name. So when I try to help people out around here, I give the reality of the situation. I have stated many times I do not like it, I do believe UDRPs can overreach. That is why I always say to protect yourself and develop the site.

Yes, facts are used, this case, a company name, a competitor registered it, the competitor said "it was a joke" (and why would he ever do that, I have no idea), The competitor did not establish rights to the domain (no developed site. again, why he didn't wa not the best thing to do), The panelist was convinced it was unfair practice by the facts.

 

[jberryhilljberryhill is verified member.]

Yes, facts are used, this case, a company name

I'm going to take a rare opportunity to disagree with you here. One can establish anything as a "company name" and still not establish trade or service mark rights. Corporation statutes simply require alphanumeric distinguishability.

The UDRP, by its terms, is limited to trade or service mark rights, and was expressly limited to exclude trade names.

http://domains.adrforum.com/domains/decisions/192249.htm <couponsinc.com>


As noted by Respondent, it was decided in Not My Kid, Inc. v. Sawchak FA167978 (Nat. Arb. Forum, Sept. 23, 2003) that a mere trade name cannot per se function as a mark, as indeed, only when used as a trademark may a trade name or business name constitute a mark under the Policy.

Sealite Pty Limited v. Carmanah Technologies, Inc.
WIPO Case No. D2003-0277
http://domains.adrforum.com/domains/decisions/145231.htm

"It is well settled that the Policy does not protect trade names or company names when this is the extent of their use. See for example Ahmanson Land Company v. Vince Curtis, WIPO Case No. D2000-0859, (December 4, 2000), where the Panel stated: "It is true that trade names….were not intended to be made subject to the proposed dispute resolution procedure….It must be concluded, therefore, that ICANN did not intend the procedure to apply to trade names…" )."

France is a civil law jurisdiction, so there is no "common law" claim to be had in connection with "jeux online".

Without going into a dissertation on "when is a trade name a trademark" suffice it to be said that the corporate name of the complainant in this proceeding is wholly irrelevant to the limited focus of the UDRP.

I don't read French, but this decision appears to mordre le grand

The competitor did not establish rights to the domain

Not his job. The burden is on the complainant to establish all of the UDRP criteria.

 

[DNQuest.com]

I'm going to take a rare opportunity to disagree with you here.

I am hoping this is a compliment

I remember reading this decision a long while ago, I remember it making my head spin back then, and it did again today You have to admit that many domainers do not have the money to fight it to the extent as this guy did. But it is good stuff and I took more from this read than I did from the first read a while ago.

As far as establishing rights to a domain, while I agree it is the burden of the complainant, the reality is, if you establish rights to a domain through development and usage, that can only help you. And there have been decisions where passivley holding a domain hurt the the domain owner. That is a sad fact of UDRPs.