Chipping away at free speech?

[typist]

http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-0014.html

Airfrancestinks.com was apparently registered by a natural person, and hasn't been used, still the panelist seems to believe trademark laws should apply.

Let's have a look at his CV:

*Senior Counsel, ... Apple Computer, Inc.

*EXPERIENCE IN INTELLECTUAL PROPERTY
Involvement with the computer industry since 1982, in respect of litigation concerning the protection
of computer programs by copyright,as well as trade marks protection.

*EXPERIENCE WITH RESPECT TO DOMAIN NAMES
Has advised many Austrialian (sic) and foreign companies with respect to the registration and transfer of,
and dispute resolution concerning, .com and .net domain names.

http://www.wipo.int/amc/en/domains/panel/profiles/knight-williamp.pdf

Mr Knight is no doubt an excellent trademark litigator for his corporate clients, who cover his generous paycheck as a partner of a top tier business law firm. Of course I don't think this affiliation could have anything to do with the outcome of the dispute, since Mr Knight must be wholly independent as a WIPO arbitrator.

I am sure free speech attorneys, if they were WIPO arbitrators, would produce the exact same outcomes. Luckily, the business lawyers are already doing such a great job as arbitrators, so there's no need to waste time on contrafactual what-if thoughts. And there are probably far too few free speech attorneys anyway.

 

[DNQuest.com]

I'm sorry, you must be joking with the title of this thread. Did you even bother to read the decision? If you did, then you never would have posted. Let's see why:

1 - The respondant, well... errr never responded
2 - The site was links to travel services and appearently you were able to get to the TM holder indirectly by following the links
3 - The domain had no real content. There were no opinions or dicsussions about the TM holder (IE- speech to actually protect)
4 - There is no reason for the panel to rule in the respondants favor.

Chipping away at free speech??? in order to do that, you need speech to begin with that needs protecting. This guy lost because he was a moron. He did not properly use the domain, he did not even bother to respond. But now he has a lost UDRP against him that can be brought up in future filings. This issue is a non-issue. It has nothing to do with free speech or who the panelist was.

 

[Gerry]

On the other side of this, someone started a website that I believe was called RyanAirSucks.com. He and other internet users would post complaints about the quality and service of Ryan Air.

Needless to say, that person was hauled into court.

That person also won because the judge claimed he and the other members that used the forum had the right to express they opinion. Not only did they have a right to express their opinion, but they had the right to specify their opionion aimed specifically at Ryan Air.

Free speech won in that case and any claim regarding TM was not even a consideration in the ruling.

 

[typist]

I'm sorry, you must be joking with the title of this thread. Did you even bother to read the decision? If you did, then you never would have posted. Let's see why:

1 - The respondant, well... errr never responded
2 - The site was links to travel services and appearently you were able to get to the TM holder indirectly by following the links
3 - The domain had no real content. There were no opinions or dicsussions about the TM holder (IE- speech to actually protect)
4 - There is no reason for the panel to rule in the respondants favor.

Chipping away at free speech??? in order to do that, you need speech to begin with that needs protecting. This guy lost because he was a moron. He did not properly use the domain, he did not even bother to respond. But now he has a lost UDRP against him that can be brought up in future filings. This issue is a non-issue. It has nothing to do with free speech or who the panelist was.

you're always very diligent in repeating what has already been stated in udrp decisions, but you don't seem to understand that I disagree.

 

[DNQuest.com]

Actually, I use common sense from the facts presented. I am a free thinker and just don't go around making statements without substance such as you are doing. Why do you disagree??? You haven't said anything besides "chipping away at free speech". How about giving us some facts? What speech was "curbed"? "Suck" sites and "fansites" are protected under freedom of speach as long as they are truely used in "good faith". You are not grasping this case at all and seem to blindly go into this discussion without knowing the true facts.

 

[labrocca]

you're always very diligent in repeating what has already been stated in udrp decisions, but you don't seem to understand that I disagree.

And you have not stated a logical reason why the panel should have decided otherwise and WHY you disagree. If your reasoning is that "Free Speech" should be protected that's fine but it has to be applied. How does it apply here? In what context do you think free speech was broken by this WIPO decision?

Your subject is "Chipping away at free speech?" written as a question....let me answer it for you. NO. Free speech is NOT being chipped away by this decision whatsoever.

 

[Dave Zan]

I'm speechless.

Free speech was definitely never an issue with this decision. Someone brought
an action under UDRP, the respondent didn't bother to reply, the panelist saw
the conditions were met, and decided in favor of the complainant.

Feel free to disagree. But that's not going to change the reality that there's a
limit as to what people can and can't do with the domain names they register.

 

[typist]

I believe it is a less than ideal situation for free speech when you can not use a domain to make a statment like "air france stinks" without fear of being censored. You could probably use the same statement as a title in a letter to the editor of a newspaper or magzine, and get it printed, without being censored, or even create a daily email newsletter, with the title and subject "air france stinks", without fear of being censored a priori.

While I'm not surprised that you disagree with me, I'm not sure I fully understand why you believe domains should be treated differently.

I think it's unfortunate that you need to first establish and then prove a right to make a critical statement like "air france stinks"; and that you're consequently a priori guilty of of not being worthy of free spech unless proven otherwise.

 

[Duckinla]

I believe it is a less than ideal situation for free speech when you can not use a domain to make a statment like "air france stinks" without fear of being censored. One could probably use the same statement as a title in a letter to the editor of a newspaper or magzine, and get it printed, without being censored.

Without having read the decision, I agree with this statement so long as the "freedom of speech" isn't being used to make money. That would be an awfully big loophole just too well suited for the internet and domain names.

 

[typist]

Without having read the decision, I agree with this statement so long as the "freedom of speech" isn't being used to make money. That would be an awfully big loophole just too well suited for the internet and domain names.

this is what the complainant, air france, claims: "the only apparent purpose and use of the Respondent’s domain name is to point to a pay-per-click hosting service offering, in the main, competing services".

the panelist found: "The Respondent’s use of the <airfrancestinks.com> domain name is ... to attract those who might be interested in the Complainant, ... and to direct them to other service providers. "

In this case, it's seems probable that the fact that the domain was pointed to a parking page was due to mere lack of knowledge, bad luck, or a combination of these. The domain reseller, hostway, points all domains registered through them to domainsponsor landing pages by default, unless the registrant actively changes dns. Hostway receives and keeps this parking revenue, ie. the registrant is not the beneficiary.

http://help.hostway.com/documents/faq_domainnameregs.htm#question24

Consequence: If you're unfortunate enough not to chose the "right" registrar or domain reseller, forget about free speech. Your domain will be taken away.

Even if we would all agree that a domain name per se should never deserve to be protected as free speech, it's interesting to note that panelists often seem to assume web pages are the only possible use for a domain name. The possibility of using a domain for Usenet, Email, Ftp, Gopher or other protocols or purposes apparently does not merit a discussion, and will conseqently not be examined by a wipo panelist.

What irks me is most that this kind of censorship is unlikely to hit "educated" internet professionals, but rather those who are less resourceful: the "morons", as DNQuest.com likes to refer to them.

 

[DNQuest.com]

Typist - I cannot believe you are still going on about this on all these threads and on different forums. Free speech is clearly protected, fansites and suck sites have been protected as long as they are used in good faith. You fail to realize that the domain is not speech, it is the content on the site that would be protected. The domain owner DID NOT have anything except links. He had no opinions or discussions about the TM holder. He used it in a commercial capacity, and anyone who knows anything about domains and TMs know that is bad faith.

Now is the domain owner had a site about an experience about Air France and discussed it on the site and maybe have a discussion board with other users, now that is free speech. He did not do that. And as far as the scenarios, you got to be kidding. If someone knows enough to register a domain, he is more than knowledgeable enough to put a simple site up. Also, he did not bother to reply. Any person with limited knowledge knows that if you don't show up for a hearing )or in this case write a reply and email it), you are going to lose. The panelist had no other choice but to perform his duty and take all the evidence submitted.

At this point, you are just being very obstinate about this subject to get onto some sort of soapbox making ridiculous claims without a single supporting fact.

Duck, maybe 9ou should have read the decison before posting, it would have cleared things up for you.

Yes, free speech should be protected and I am a strong supporter of fansites and suck sites. I have given many helpful posts to help in these matters. I myself have several fansites which are used in good faith. But this case has nothing to do with free speech, it has to do with someone who registered a
TMed domain to make money off of it.

BTW- maybe you want to research paypalsucks.com and see how free speech was protected. And Paypal has one of the strongest legal teams around.

 

[typist]

You fail to realize that the domain is not speech

No. You keep getting this wrong: I don't fail to realize that the domain is not speech. My point is that I believe domains per se, under certain circumstance, deserve a better protection, as speech.

The domain owner...had no opinions... about the TM holder

You make an assumption that "air france stinks" is not an opinion about the TM holder. I disagree.

He used it in a commercial capacity

I can't see any proof to support this claim.

anyone who knows anything about domains and TMs know that is bad faith

Exactly my point: The "morons", as you call them, however might not know about this. You seem to believe their (potential) speech is not worthy of protection.

 

[Duckinla]

Exactly my point: The "morons", as you call them, however might not know about this. You seem to believe their (potential) speech consequently is not worthy of protection.

This relates to another thread started by Taboo. Should the domain holder be punished for using the domain wrong? Possibly. Should they automatically lose the domain? No. Just like land, you get punished for using it wrong, you don't get it taken away. And it certainly doesn't automatically go to the complainant. I could understand a fine, but the domain itself doesn't belong to Air France any more than it belongs to any one of us. In my opinion that is where the free speech issue comes in.

 

[VirtualT]

it's interesting to note that panelists often seem to assume web pages are the only possible use for a domain name. The possibility of using a domain for Usenet, Email, Ftp, Gopher or other protocols or purposes apparently does not merit a discussion, and will conseqently not be examined by a wipo panelist.

This is an excellent point, I have several domains I use only for email and ftp, does this mean I am not "using" these domains properly?

 

[Raider]

If you dont show up for the hearing to defend your domain, you deserve to lose it!, I dont see where this is any different than not showing up in court when a claim is made against you, Free Speech does not fit into this at all, perhaps it would if the owner defended it....just my 2 cents.

 

[typist]

If you dont show up for the hearing to defend your domain, you deserve to lose it!, I dont see where this is any different than not showing up in court when a claim is made against you

If I make a claim in a court against you, and you don't show up to defend yourself, you deserve to lose?

I could file a claim against you here in Vietnam immediately if you think this is fair

I'll make sure to get the court papers sent to you by paper mail only, and - with the help of some gifts - ensure the process isn't delayed (not the mail to the US, which takes 3-4 weeks usually - but the court process...). This way there's a fair chance you won't even get the papers before the court decides.

I travel a lot, so I could also file claims in numerous other countries. I'm not sure if I agree that you'd deserve to lose only because you don't defend yourself though, so I won't.

 

[Duckinla]

If you dont show up for the hearing to defend your domain, you deserve to lose it!,

I think the issue is deeper and more philosophical than this. If I call my restuarant "Burger King", I may get punished but I don't lose my restuarant. And it certainly doesn't get handed over to Burger King. If a string of words or letters are used improperly, that doesn't mean they should belong to the party you offended with your improper use.

 

[typist]

well put.

 

[Raider]

Its the way the system unfortunately works, If your sued in small claims court for whatever reason, lets say someone rented a storage space to you and the bill was unpaid, the owner of the unit sues you in small claims for the right to sell your property or is seeking monetary damages, you the defendant don't think your property is worth it, so you don't appear in court, the Judge in the case then has to act on your behalf without any evidence in front of him, and all plaintiff has to do is prove his claim beyond a reasonable doubt. NO Shows almost always go in favor of the plaintiff, its a fact. I don't see how this is any different than a WIPO case, if you don't appear to defend your property, the greater the risk that your going to lose it, this is the point I was trying to make.

 

[Duckinla]

Kind of unrelated; if you don't show up to defend yourself in a WIPO, do you have to pay anything? Conversely, I would assume any defense of a WIPO dispute requires payment as well?