cuts.org case

[dtobias]

This UDRP case just got decided:

http://arbiter.wipo.int/domains/decisions/html/2004/d2004-0119.html

The domain cuts.org was ordered transferred from the respondent to the complainant.

It's likely the "right side" won, in a moral sense; it seems like the domain was originally owned by the complainant and somehow (and possibly unlawfully) wound up in the hands of the respondent:

The last renewal was made by the Complainant on November 25, 2003, with Register.com. However, on January 4, 2004, the Complainant found that the said site has been registered by a new registrant, namely, Marketing Manager, Cuts Marketing Solutions. On January 12, 2004, the data was changed further and the registrar has changed.

I'm unclear exactly what happened, but apparently either the renewal was somehow botched and the domain was allowed to expire, or else somebody got their password and hijacked the domain. Thus, it's possible the organization which rightfully owned the domain lost it through no fault of their own (though it's not entirely clear).

However, regardless of the moral case they may have, I don't think they have much of a UDRP case; "cuts" is a common English word, and the complainant is an organization in India, without a registered trademark, whose fame may not extend very much outside that country (and the respondent is in the U.K.). However, the panelist showed very questionable judgment in making the ruling. On the subject of whether the respondent had any legitimate interest in the name, the panelist had this to say:

"CUTS" is the name and service mark of the Complainant. It is evident that the Respondent can have no legitimate interest in the domain name. Further, in view of the fact that the Complainant has not licensed or otherwise permitted the Respondent to use its name or service mark or to apply for or use the domain name incorporating said name and that nobody would use the word CUTS unless seeking to create an impression of an association with the Complainant, the Panel finds that the Respondent has no rights or legitimate interests in the domain name.

Really? Nobody would use the word "cuts" unless seeking to create an impression of an association with an organization in India which I hadn't heard of until I read this case? What about using the word "cuts" to describe small injuries of the sort treatable with Band-Aid (R) brand bandages? (Note my correct trademark usage there.) This panelist seems to be of the school of thought that anybody with any sort of rights to a name has absolutely exclusive rights to it, in all possible contexts; so you can't describe a piece of fruit as an "apple" without infringing on either a record or computer company, I guess.

The panelist also notes:

A representative of the London Center of the Complainant made a bid to the Respondent to buy the domain name. The final purchase amount agreed between the representative and the Respondent was 1,800 Euros. The Complainant has contended that this amount is far in excess of the registration of the domain name and this in itself is evidence of the Respondent’s malafide intention.

In other words, the complainant and respondent were negotiating, in apparent good faith, for a peaceful sale of the domain, when the complainant reneged on the purchase agreement and filed this case. It sounds like they're the ones acting in bad faith here.

 

[Nameable]

Poor decision by the owner not to respond.

I can think of at least one salon around here called "cuts". Slap up a quick directory of local salons and you've got your bona fide use.

 

[Garry Anderson]

If respondent originally took the domain name unlawfully from complainant - then this was correct result.

Illegal procurement or use is likely the only times when a domain could be taken from owner with any real sense of Law and Justice.

However - was there any evidence shown of payment actually going from the cuts.org Complainant (November 25, 2003) to Register.com?

Why no record of cuts.org transfer authorisation from Register.com?

It seems to me like complainant let domain lapse.

UDRP - steal a domain as easy as 1 - 2 - 3.

UDRP process is pure sophistry - deceitfully false arguments from corrupt people.

1. 'Confusingly similar' - duh - every word you use is 'confusingly similar' to a trademark. Although essential requirement to unlawful activity the argument is somewhat fallacious - because trademarks are also 'confusingly similar' to other trademarks and other businesses without trademark.

2. 'Respondent has no rights or legitimate interests' - duh - everybody has every right to use any words for whatever lawful reason they wish. Domain names are not just for trademarks - ask DNS creator Paul Mockapetris.

3. 'Registered in bad faith and is being used in bad faith' - duh - we live in a free-market economy.

They imply something is wrong with 'brokering' to make you seem illegitimate. The fact is - that the secondary market is legitimate commerce - used by big business (inc. Great Domains, owned by VeriSign, the world's largest provider of Internet trust services). As most know, Proctor and Gamble had thousands of domains and were selling many off, having beautiful.com valued at three million dollars.

P.S. Check USPTO.gov site for other trademarks that are 'confusingly similar' to CUTS and BEAUTIFUL.

It is crystal clear to me; it is all sophistry and bull* - dishonest acts perpetrated by corrupt people.

 

[actnow]

Poor decision by the owner not to respond.

I believe that is why he/she lost the name.

Had the respondent fought this proceedings with legal counsel. They might have remained the owner of the name.

I guess the respondent didn't think the name was worth the cost of an attorney.

This case can now be used against him in future cases.

Big mistake on the part of the respondent.

 

[jberryhill]

"The Respondent did not reply to the Complainant’s contentions. Hence, the Respondent’s activities are not known."

ZZZZzzzzzzzz..........

 

[Garry Anderson]

Quote: "the Respondent’s activities are not known".

*** NOT KNOWN ***

The Respondent has NOT pleaded guilty - not turning up is not an admission of guilt - it could be an act of disdain at a corrupt biased process.

The assumption is always towards innocence - REPEAT - "the Respondent’s activities are not known".

Prima Facie and even upon the fullest investigation - clearly this word could legally be used by any number of businesses (new and old).

You only have to check USPTO database (plus all unregistered and other countries).

Surely, even a monkey-brained, brown-nosed WIPO moron could see that.

It seems that John agrees again with this WIPO sort of mentality - that brands people guilty in their absence - with little or no evidence.

Most damning lack of evidence - why no record of cuts.org transfer authorisation from Register.com?

 

[Domagon]

Arbitration is lightyears different from a criminal matter...

The Respondent didn't respond and thus it's no surprise they lost the domain. No need to even read the decision, quite really, beyond that...for if the Complainant merely claims to have a trademark (common, state, federal, etc) and further claim they have a legitimate claim to the domain and the Respondent doesn't, the decision is basically a foregone conclusion.

UDRP has no explicit provisions for discovery - while most panels (default 1 person unless the *Respondent* pays for a 3 person panal [usually a good move]) will check the USPTO and similar databases if it seems applicable to the matter at hand, they usually will do little to no checking beyond that.

Continuing that thought...often a Complainant will load up their complaint with lots of details, various "facts", etc knowing darn well that they likely won't be refuted by anyone except the Respondent...the Complainant is counting on the Respondent being overwhelmed/confused/intimidated into not responding at all leaving the Complainant holding all the cards.

Ron

 

[Garry Anderson]

Ron> "Arbitration is lightyears different from a criminal matter..."

It is still up to "Prosecution" to prove case ;-)

Ron> "The Respondent didn't respond and thus it's no surprise they lost the domain"

Please could you point me to the rule which states Respondent loses domain if they fail to reply - either deliberately or by being unable to contact.

Ron > "if the Complainant merely claims to have a trademark (common, state, federal, etc) and further claim they have a legitimate claim to the domain and the Respondent doesn't, the decision is basically a foregone conclusion."

You know virtually all words are trademarks - so please show rule where people are not allowed to get common words for domain.

Ron> "UDRP has no explicit provisions for discovery"

Discovery is not required - "cuts" is clearly a common word. Prima Facie this can be used for nearly anything.

Again: Most damning lack of evidence - why no record of cuts.org transfer authorisation from Register.com?

It appears the complainant let domain lapse.

There was no evidence of unlawful procurement or of any illegal use shown in case - was there?

 

[jberryhill]

"It seems that John agrees again with this WIPO sort of mentality"

It seems you just aren't going to dislodge your head from your rectum, are you.

The Respondent couldn't be bothered to send an email to respond to the Complaint. I couldn't be bothered to care.

 

[dtobias]

I'm not concerned for the respondent, who deserves what he got for defaulting on responding (and may have been guilty of hijacking the domain in the first place, though it's hard to tell for sure). I am, however, concerned about some of the statements made by the panelist to the effect that there's no legitimate use for the word "cuts" other than to refer to the complainant organization. That mindset is all too common on UDRP panels, and has affected the outcome even of non-default cases.

 

[jberryhill]

"That mindset is all too common on UDRP panels, and has affected the outcome even of non-default cases."

For the peanuts that panelists get paid, many of the default decisions are "cut and paste" jobs. But I agree with you, which is why people who do not bother to answer no-brainer wins can be irritating. If for nothing else, it takes time to clear out all of the default cases that are cited in a complaint.

 

[Garry Anderson]

Garry> "It seems that John agrees again with this WIPO sort of mentality"

John> "It seems you just aren't going to dislodge your head from your rectum, are you."

Thank you for reminding me John.

While up there I managed to find your cerebrum for you.

The lack of higher mental functions alerted us all to your loss - and forum members were asked by moderators to look absolutely everywhere for your missing brain.

Wouldn't you guess - it is always the last place you think to look.

There it was - right up my bum ;-)

John> "The Respondent couldn't be bothered to send an email to respond to the Complaint. I couldn't be bothered to care."

I would certainly hope other experts have a more responsible attitude to the very serious matter of "burden of proof".

 

[Garry Anderson]

Dan> "who deserves what he got for defaulting on responding"

Sorry Dan - have to disagree. Guilty until proven innocent is not the way to do things.

Dan> "(and may have been guilty of hijacking the domain in the first place, though it's hard to tell for sure)"

Again - Complainant seemed to imply it - because they had no evidence - no record of cuts.org transfer authorisation from Register.com.

Dan> I am, however, concerned about some of the statements made by the panelist to the effect that there's no legitimate use for the word "cuts" other than to refer to the complainant organization. That mindset is all too common on UDRP panels, and has affected the outcome even of non-default cases.

Here we agree

With corrupt people setting and running the system - what do you honestly expect.

You even have to prove you have the right to use dictionary words for flips sake - words that can legally be used by any number of legitimate businesses.