WIPO Panelists Want to Change “Bad Faith” Standard to Favor Complainants

[lennco]

I generally do not repeat articles from other blogs here at NeusNews,com. However, the following article was written by Nat at DomainArts.com. For the purpose of some brevity, I have edited the below comments, but their impact remains important for all domainers.

“Many domains held for investment are at risk of loss due to a radical new approach to the UDRP championed by some UDRP panelists at WIPO’s Advanced Workshop on UDRP Practice and Precedent held in Geneva last week.

Respected WIPO Panelist and the Workshop co-leader, David Bernstein, is a leading advocate for this new approach that changes the criteria that the Complainant must prove to win a transfer of a disputed domain. The standard since the UDRP was introduced in 1999 has been that “Registration in Bad Faith” must be proven before a domain can be transferred. Bernstein, and other panelists who share his views, are using a “Renewed in Bad Faith” standard instead.

The “Renewed in Bad Faith” standard is an open invitation to companies to employ the UDRP to try to steal your domains. As was made clear at the WIPO workshop, under the “renewed in bad faith” standard every renewal provides a panel the opportunity to look at the then current use for evidence of bad faith. Putting a domain to virtually any use other than running an established business on that domain can be viewed as bad faith. The following were all held out as examples of bad faith use at the workshop, and have been cited as bad faith use in many UDRP decisions-

● parking a domain name, whether there are infringing links or not;
● having a GoDaddy landing page on your domain, even if you make no money from it and are not aware of it;
● leaving the domain undeveloped;
● offering the domain for sale;
● having a criticism site on a domain;
● running a business on the domain, if the business is viewed as competitive with the Complainant’s.

Renewing your domain while it is being put to any of the above uses therefore could give a panel grounds to order a transfer under the “Renewed in Bad Faith” standard.......Read More

This is un F'n believable!
We are so screwed!

:td: :yell: :td:

 

[alien51]

This was how Adolf Hitler founded the Nazi empire, using Fascist ideas of a few, to rule over the interests of many.

Sadly, those so-called "Domain Investors/Owners Associations" can do nothing but collect money from paying members. I won't be surprised if these domainer associations will turn out to be the WIPO's gestapo. All they do is organize Fund Raising conventions year after year to finance their own personal interests.

 

[lennco]

This was how Adolf Hitler founded the Nazi empire, using Fascist ideas of a few, to rule over the interests of many.

Sadly, those so-called "Domain Investors/Owners Associations" can do nothing but collect money from paying members. I won't be surprised if these domainer associations will turn out to be the WIPO's gestapo. All they do is organize Fund Raising conventions year after year to finance their own personal interests.

Exactly!

Do you think companies like Sedo and Godaddy will ever fight this type of bullying?
I mean this would kill the entire aftermarket industry.
It would kill Sedo and take millions out of Godaddy's pocket.
They have the money to take this on.

 

[twomoon]

I don't think Sedo invest in domains, but maybe I'm wrong. This thing may hit mainly the owners of premium dot coms. And there are many such people. There are many big fishes, well known in the world of domaining, and in my opinion these people could struggle with this nonsense.

 

[lennco]

I don't think Sedo invest in domains,

No, but if parking a domain is no longer allowed and offering a domain for sale in also not allowed then that would kill companies like Sedo.

 

[twomoon]

No, but if parking a domain is no longer allowed and offering a domain for sale in also not allowed then that would kill companies like Sedo.

Totally agree with you.
But for me it would be the real pain in the ass for the big guys. Generally it will ruin the industry.
The gang from the STS forum would acquire namepros and it would be The End

 

[Name Trader]

I think most of the big fishes can afford a domain lawyer and have the sense to employ 3 person panelists. Most of these stupid decisions are being made by 1 person panels.

I don't think Sedo invest in domains, but maybe I'm wrong. This thing may hit mainly the owners of premium dot coms. And there are many such people. There are many big fishes, well known in the world of domaining, and in my opinion these people could struggle with this nonsense.

 

[Keith]

Generally it will ruin the industry.

The domain game for sure.

This type of move could be good for the internet though. Instead of good domains behind held for ransom and parked forever, they may get into the hands of actual developers

 

[twomoon]

Got a feeling that something like that already had happened once... Nationalization, communism, Lenin

 

[domainventure]

Even before a large number of .com owners are affected by this, the real nervous parties should be the new GTLD operators.
Just imagine, it is going to open a can of worms.

With a plethora of combinations to the right and left of the dot, it is bound to create a ton of bad faith complaints, that is if the extensions become a success.

If the text as it is interpreted and enforced, will actually dampen the free spirited enterprise,inventiveness and innovation that the internet stands for and embodies.

Maybe a bit dramatic but draconian acts never have yielded their desired results but have always been counter productive

:wave:

This is un F'n believable!
We are so screwed!

:td: :yell: :td:

 

[alien51]

This thing may hit mainly the owners of premium dot coms. And there are many such people.

Not really. It will affect everyone. Because they said, if you are not developing the domain, the WIPO Nazis say that in itself is "bad faith". Failing to develop a domain is "bad faith".

But they have no guidelines as basis on how to determine a domain is not developed.

I think most of the big fishes can afford a domain lawyer and have the sense to employ 3 person panelists. Most of these stupid decisions are being made by 1 person panels.

Domain lawyers would be useless.

That's because the WIPO Nazis are changing the domain ownership rules in which the domain lawyers will base their arguments.

People can just pay for trademark, then pay another UDRP fee to automatically grab a domain they want.

 

[JB Lions]

"We are so screwed!"

Might be overreaction, something most of us will never even have to worry about.

Few things, just skimmed the article:

"leading advocate for this new approach"

Right now it's "want to change", not changed already. So first, it might not even happen. Let's say it does, then:

Second, most people buying domains, don't even know about this (WIPO) in the first place. They see a domain for sale, they might make an offer on it or buy it some other way. This would affect more the bigger names a company might want. It costs a little money to do this.

Third, if you stay away from names that might be TMed, in the future, you should be ok. Like generics.

“It doesn’t matter that XYZ domain was registered 10 years before my company came into existence, when it was last renewed it was being used as a [parked page/ blank page/ for sale page/ under construction page/ GoDaddy lander page/ criticism site] which is a bad faith use that violates the warranty under Paragraph 2 of the UDRP, therefore transfer the domain to me.”

So you reg a name many years ago, not a TM at the time. Then somebody TMs it, you renew domain, then all this happens. Most of mine are generic, the brandables I have are not TMed at the time, only payed reg fee usually and I would probably sell them for less than the money it takes to bring a WIPO case.

 

[alien51]

Second, most people buying domains, don't even know about this (WIPO) in the first place. They see a domain for sale, they might make an offer on it or buy it some other way. This would affect more the bigger names a company might want. It costs a little money to do this.

That would be like engaging in the Black Market business. You know you are doing something wrong, but since your buyer does not know that what you are doing is illegal, they will pay you anyway. You will make money. And all is well.

Third, if you stay away from names that might be TMed, in the future, you should be ok. Like generics.

Domain names were not invented for the sole purpose of using generics, or dictionary domains.

And besides, dictionary name combinations can be trademarked. And such trademarks will curtail the usage of your domain, and will reduce your potential buyers.

Instead of self-protection, there is a need to realize that this NEW RULE being proposed is flawed and fundamentally wrong.

It is like the Anti-Child Pornography Law that was struck down by the Supreme Court as unconstitutional. The intention was good, but it infringes on the rights of others. In the case of domains, the "right to own".

So you reg a name many years ago, not a TM at the time. Then somebody TMs it, you renew domain, then all this happens. Most of mine are generic, the brandables I have are not TMed at the time, only payed reg fee usually and I would probably sell them for less than the money it takes to bring a WIPO case.

So what you are saying, is that if ALL of your brandables are taken away from you by WIPO rulings, you will just shrug your shoulders and live with it, since as you said you only paid reg fee anyway.

 

[JB Lions]

"That would be like engaging in the Black Market business. You know you are doing something wrong, but since your buyer does not know that what you are doing is illegal, they will pay you anyway. You will make money. And all is well."

What? When did buying domains become Black Market business? And what is illegal exactly?

"So what you are saying, is that if ALL of your brandables are taken away from you by WIPO rulings, you will just shrug your shoulders and live with it, since as you said you only paid reg fee anyway."

Didn't say that at all, that's more overreaction on your part. Haven't had a WIPO case yet. I have brandables and generics. The likelihood of it happening is very slim.

"And besides, dictionary name combinations can be trademarked. And such trademarks will curtail the usage of your domain, and will reduce your potential buyers."

That can happen right now. The ones I have, still aren't.

 

[alien51]

What? When did buying domains become Black Market business? And what is illegal exactly?

"Buying" alone does not make a market. But being a "Domainer", domainers will be engaged in "buying-and-selling". And if domainers are conducting their "buying-and-selling" against the rules, then they are engaged in a black market.

Most of the 'commerce' being done right now in the Domain Aftermarket, will be against the rules.

Didn't say that at all, that's more overreaction on your part. Haven't had a WIPO case yet. I have brandables and generics. The likelihood of it happening is very slim.

My approach is the proposed news rules, are wrong.

Your approach is, you think you have a slim chance of getting caught, so you are happy to continue doing business until you get caught. And if you get caught, it's just reg fee domain anyway, so it's ok for you if they take it away.

It's not an overreaction. I'm just following your logic.

That can happen right now. The ones I have, still aren't.

Yes it is happening now.

Somebody tried to buy my domain. Didn't like my price. So he paid to trademark it, and he was granted a trademark. He has not filed a UDRP, but i am now legally constrained not to use the domain that infringes in how he uses the trademark in the niche he is in.

 

[JB Lions]

"Buying" alone does not make a market. But being a "Domainer", domainers will be engaged in "buying-and-selling". And if domainers are conducting their "buying-and-selling" against the rules, then they are engaged in a black market.

Most of the 'commerce' being done right now in the Domain Aftermarket, will be against the rules.

That's not true at all. None of the names/auctions I usually get in.

My approach is the proposed news rules, are wrong.

Your approach is, you think you have a slim chance of getting caught, so you are happy to continue doing business until you get caught. And if you get caught, it's just reg fee domain anyway, so it's ok for you if they take it away.

It's not an overreaction. I'm just following your logic.

I think they're wrong as well. But again, proposed rules. And you're not reading at all. I don't have the type of domains where this would be an issue for me, so there is nothing to get caught on. My approach is very simple. These are proposed rules, not actual rules at this time. So again, might not even happen. Then if it does, will probably have slim to no affect on most people here.

Yes it is happening now.

Somebody tried to buy my domain. Didn't like my price. So he paid to trademark it, and he was granted a trademark. He has not filed a UDRP, but i am now legally constrained not to use the domain that infringes in how he uses the trademark in the niche he is in.

Sure, those kind of things can happen. I think we all know it and understand that's part of the business. But it really doesn't happen that often when you compare the number of cases to the number of domains out there. You just hear about it when it does. I think the end result is, again, probably zero to no affect on most people here, something I worry about zero as well.

 

[alien51]

Well, there are people who operate their business with a "white hat" approach. That means, conducting business within the rules. That is why, if the rules they want to implement are wrong, it must be lobbied to stop them from being implemented.

Your approach is, i don't care if the rules are wrong, oppressive, or unjustified. It doesn't affect me, so why should i care?

This is one reason why ethics do not exist in Domaining. It's because domainers only watch their own backs. As long as they are not affected, the rest can attrition themselves.

 

[JB Lions]

approach is, i don't care if the rules are wrong, oppressive, or unjustified. It doesn't affect me, so why should i care.

So you got that from this:

"I think they're wrong as well."

I just literally said above that I thought they were wrong. There are some bigger parties that would be involved, GoDaddy, Sedo, big domainers etc. I think they have some influence.

 

[alien51]

So you got that from this:

"I think they're wrong as well."

I just literally said above that I thought they were wrong.

Yes. Thank you for your outmost support for the cause. lol

 

[JB Lions]

Yes. Thank you for your outmost support for the cause. lol

Because posting in this thread will have some real affect.

Oh, I'm outraged. There. Handled.

Did you have some bigger/better plans? Do you have some online petition setup everybody can sign? Something else in mind? Something that would have a real affect? What? What would you like your fellow domainers to do, besides posting in this thread? I'm for anything that makes sense.