UDRP Case Filed Against Poker.com!

[pljones]

I was scanning the cases filed with the CPR Institute for Dispute Resolution (one of the lesser known and used ICANN approved dispute resolution providers) this afternoon and I noticed that on January 21, 2003, a case was commenced against Poker.com. Yes, you read it right- Poker.com.

Take a look at Poker.com, and anyone can see that it is obviously an Internet gambling site. It is owned by Communcations Services Inc of Western Samoa, and the domain name has been owned at least since July 31, 1998 (and probably earlier than that).

I can't tell who the Complainant is in this case, but COME ON! Does this dispute really belong before a UDRP panel? The question should be a resounding "NO," and I really hope some of the other esteemed members of this board (John, Ari, Steven, etc) put their two cents in.

 

[RMF]

Might have something to do with the domain being hijacked. There was a thread on that a while ago.

http://www.dnforum.com/showthread.php?s=&threadid=14068

RMF

 

[pljones]

Ok, thanks for pointing me to that thread.

Well, if the domain name was hijacked, filing a case under the UDRP for this domain is the wrong way to go. The complainant would have been better off following the lead of Gary Kremen in the Sex.com case - filing an action in federal court.

The UDRP was not designed for disputes such as this.

 

[jberryhill]

"The UDRP was not designed for disputes such as this."

While you are absolutely correct, there is at least one UDRP decision that acknowledged that fact, and then went on to transfer the domain name anyway.

" A thief does not have good title to what he steals, nor can a thief pass good title to another."

http://www.disputes.org/eresolution/decisions/0343.htm

"title"? Hmmmm...... The California Supreme Court could use a few folks like him....

 

[HOWARD]

Sounds like "property" to me, John. )

 

[dtobias]

They're in Western Samoa? Shouldn't they use a .ws domain instead, being in the only place where it actually makes logical sense?

 

[Silverwire]

Originally posted by dtobias
They're in Western Samoa? Shouldn't they use a .ws domain instead, being in the only place where it actually makes logical sense?

And Americans should also eschew .com in favor of .us?

 

[charles]

JB:

Thanks for the link to this UDRP decision. It's interesting what the arbitrator did -- which is quite clear from the text of the decision:

"...most of the factors ... are not applicable [therefore] we must look beyond this list of non-exclusive factors to determine if there is bad faith. *** Providing false contact information constitutes 'bad faith' as defined by the Anticybersquatting Consumer Protection Act, 15 U.S.C. §1125(d)(1)(B)(i)(VII). Other cases have agreed. It would also be difficult to say a thief acts other than in bad faith. While other cases have had difficulty in determining if the initial registration was in bad faith, that is very clear under the present circumstances. The continued possession of the domain name, under the special circumstances of this case, also clearly demonstrates the domain name is being used in bad faith." (Emphasis added.)

SO the gist of the case is:

1. A finding of "bad faith" alone will be sufficient to compel return of a domain name, and

2. The finding of bad faith may be premised upon a showing of:
(a) Providing false contact information
(b) Thievery, and/or
(c) Continued possession of the domain name under circumstances demonstrative of the unlawful exercise of control without lawful authority (the "special circumstances of this case")

Just goes to show, given a chance, jurisprudence will grow!

 

[draqon]

lets say that someone owned the domain Max.com, but their admin email address and other contact info was outdated. Could I find someone who had a TM on the word Max or some variant of Max like Max Computing and then just have that guy WIPO the Max.com owner? It seems that would be an effective way to get the domain for only 2,000 bucks or whatever a WIPO is going for these days. I could probably acquire a million dollar domain portfolio for only 40 or 50k.

 

[jberryhill]

"Could I find someone who had a TM on the word Max or some variant of Max like Max Computing and then just have that guy WIPO the Max.com owner?"

Oh, it's even simpler than that, draqon.

Why bother to have "that guy" WIPO the domain name?

Remember, the UDRP system relies entirely on electronic and paper filings. Nobody is going to come to your house and check out who you are.

If you think that all UDRP complaints have been authorized by the actual TM owner named in the complaint, then you have another think coming.

I certainly do not advocate or condone that sort of activity, but I am not naive enough to believe it does not go on, and I have reason to believe it does.

If you aren't following this, let's make it clear in your example. Someone has the domain name "example.com". So, you go look up a trademark registration for "example". Then YOU file a UDRP complaint as the "representative" of the folks who own the TM for "example".

Heck, make it a foreign TM from a country without an online database... make it a TM that doesn't even exist. Most UDRP cases are defaults and NOBODY involved in the process independently verifies anything that is in a UDRP complaint.

 

[Silverwire]

Things that make you go Hmmmm.

 

[charles]

Originally posted by jberryhill
Most UDRP cases are defaults and NOBODY involved in the process independently verifies anything that is in a UDRP complaint.

A tremendous lot of bad Internet law has come from default adjudications. Steve Cohen won at least six trademark lawsuits based on a fraudulent USPTO trademark application until the Portland US District Court allowed Kremen to intervene in three pending lawsuits. Judge Jelderks then stayed all three lawsuits after concluding Kremen probably was the true owner of Sex.Com, and Cohen's lawsuits were unauthorized. When Kremen won, all of the suits were dismissed. But many people, including Serge Birbrair, were sued by Cohen over domains that contained "sex," including sexxx.com, sexia.com, etc. So that was a double scam -- you couldn't lawfully trademark sex.com, and it wasn't Cohen's to trademark anyway -- but he pulled the wool over the eyes of at least six federal court judges. How much easier to spoof the UDRP.

Thank you for that excellent sidelight on WIPO process, John.

I also want to get around to weighing in on your handicapping of pending cases, but haven't got to it yet.

Chas

 

[draqon]

Thanks for the info guys. Its fascinating that such a serious legal loophole would exist in a system that otherwise seems pretty fair.

 

[jberryhill]

Oh, there are more UDRP fun & games that go on than you would believe. Take a look at the UDRP papers on the site at tobacco.com - the complainant was the same guy who tried to get america.com. The folks at the NAF were laughing when I called them up to clarify which domain name he wanted, because he didn't take all instances of "america.com" out of the "tobacco.com" complaint.

Another example... you can UDRP-proof your own domain name by (a) registering the domain name under a fake name, (b) generating some fake correspondence, and (c) submitting the whole mess as a UDRP complaint and having a panel transfer the domain name to you.

There was one guy, it'll take me a little time to dig up the case (it was a .biz stop decision if you remember it pljones)... who was so clueless at how to do a bogus complaint for secondary purposes, that he filed the complaint against himself. The panelist couldn't figure out why this guy was complaining about his own domain registration, but refused to transfer the domain name.

Another reason to set up fake UDRP disputes is to bootstrap yourself into a TM claim that you can then assert against someone else.

Then, there are the ones like "aol-microsoft.com" where AOL complains, the case defaults (surprise, surprise), and then AOL gets to keep a domain name with "microsoft" in it.

The UDRP is good for more things than one might imagine.

 

[charles]

Originally posted by draqon
Thanks for the info guys. Its fascinating that such a serious legal loophole would exist in a system that otherwise seems pretty fair.

Fraud is always a serious loophole. The question is who is so sufficiently lacking in scruples as to exploit it. When fraud and deception become widespread, we will see a "race to the bottom," in which the biggest winners are the most unscrupulous -- Enron, WorldCom, and a host of other looters.

The Internet has been a boon for those willing to use deception, as we all know, in large part because the authorities are so underinformed and tech-illiterate. Circling back around to the topic of default adjudications as a source of bad law -- for years NSI preached its demented catechism to a gullible audience of judges who had no idea what they were being told. Case after case went its way as one goofy lawsuit after another (remember the battle to dot-com the word "*****"?) bit the dust before NSI's determined, and well-strategized legal defenses. Pretty soon, NSI was believed to be invincible -- primarily because the opposition was fragmented and capricious. At long last, though, the world is beginning to see the clear light of common sense.

The most recent sign of awakening common sense among the members of the federal bench occurred during the latest twist of the ongoing Sex.Com lawsuit. Judge Kozinski of the Ninth Circuit Federal Appellate court wrote a stirring dissent against the decision of the other two judges on the panel, who punted on the issue of whether NSI is subject to suit for conversion of personal property with respect to Sex.Com, by sending the issue to the California Supreme Court for decision:

Whether NSI's .com registry is a document in which intangible property rights are merged is a hard technical question, not a hard legal one. It's a matter of coming up with the right analogy, and that has more to do with understanding how the Internet works than with state property law. The relevant facts are not genuinely disputed, but it takes a close reading to reconcile the competing characterizations, and a familiarity with the underlying technology doesn't hurt. We're certifying this case to the California Supreme Court, not to the ghost of Jonathan Postel; as far as I know, the former has no unique expertise in the field of Internet architecture.

Read the full text of Judge Kozinski's dissent from the latest Sex.Com decision at my website -- click on "In The News" in the navigation bar, and then scroll down to the first link entitled "Order Certifying Question to the California Supreme Court." OnlineMediaLaw.com

 

[pljones]

John,

The case you referred to involved the domain name Bainbridge.biz (http://www.arbforum.com/domains/decisions/110786.htm ). The complainant and the respondent were the same person.

 

[Silverwire]

Originally posted by charles


Fraud is always a serious loophole. The question is who is so sufficiently lacking in scruples as to exploit it. When fraud and deception become widespread, we will see a "race to the bottom," in which the biggest winners are the most unscrupulous -- Enron, WorldCom, and a host of other looters.

brilliantly stated

 

[jberryhill]

"The case you referred to involved the domain name Bainbridge.biz (http://www.arbforum.com/domains/decisions/110786.htm ). The complainant and the respondent were the same person."

Ah, thank you. Now, does that proceeding make more sense to than it did before?

There are probably OTHER folks running around with TM rights in "Bainbridge". This guy figured he could get a UDRP panel to say that *he* had a TM right, which he could then use as a defensive position in case he was challenged by someone who, for all we know, he was cybersquatting against.

The point is that if you are going to use the UDRP (or other domain challenge procedures) this way, then it helps not to be such an idiot:

"No response was filed. Complainant instead argues against itself in favor of Respondent."

I'm reminded of the scene in the movie _Bananas_ where Woody Allen, acting as his own counsel, examines himself as a witness at trial.