Submitted by: Russ Smith
Date: 20 May 2000
|Due to a communications
oversight on the part of ICANN staff, this reconsideration request
was misplaced. We thank Mr. Smith for
following up and bringing this omission to our attention. Procedures
have been tightened up to ensure this should not happen again.
-------- Original Message
Subject: Reconsideration request-UDRP related
Date: Sat, 20 May 2000 00:57:53 -0400
From: email@example.com (Russ Smith)
CC: <firstname.lastname@example.org>, "Francis Gurry"
<email@example.com>,<firstname.lastname@example.org>, " \( Arbiter.Mail
<email@example.com>,"Arif Ali" <firstname.lastname@example.org>,
<email@example.com>,"Erik Wilbers" <firstname.lastname@example.org>,"Patricia
I am requesting reconsideration on the following ICANN activity:
The failure of ICANN to properly publicize the stipulation in the ICANN
staff report #2 concerning the Uniform Domain-Name Dispute Resolution
Policy (UDRP). The report states in part:
"In view of the comments, one detail of the policy's language should
be emphasized. Several commentators indicated that the concept of "tarnishment"
in paragraph 4(c)(iii) might be misunderstood by those not familiar
with United States law or might otherwise be applied inappropriately
to noncommercial uses of parody names and the like. Staff is not convinced
this is the case, but in any event wishes to point out that "tarnishment"
in paragraph 4(c)(iii) is limited to acts done with intent to commercially
gain. Staff intends to take steps to publicize this point."
-Russ Smith, PO Box 44232, Washington, DC 20026-4232
-I am requesting ICANN take 2 actions: (1) immediately notify all persons
acting as UDRP arbitrators of this issue and (2) reprocess all domain
disputes where First Amendment and/or tarnishment issues were raised
during the proceeding.
-I am affected by this matter because I operate domain names which could
be subject to a similar dispute. Dispute decisions are being used as
precedents for later disputes. therefore, such decisions may affect
domains which I own.
-This situation should be corrected because non-uniform decisions in
the UDRP contribute to a destabilization of the Internet.
The following documentation is being used to support my request:
(1) A posting by attorney Robert A Fashler on the public INTA mailing
list. Mr. Fashler was an arbiter for case http://arbiter.wipo.int/domains/decisions/html/d2000-0071.html
which involved a First Amendment issue. Mr. Fashler's posting clearly
indicates he was not aware of the ICANN provision concerning tarnishment.
From: email@example.com [mailto:firstname.lastname@example.org] On
Behalf Of email@example.com
Sent: Thursday, May 18, 2000 11:05 AM
Subject: (INTA)First Amendment and the UDRP
1) Does anyone believe a case can be made that there's a difference
between a domain name in use for protected (1st Amendment) speech, and
a domain name reserved, but not used, for that potential purpose?
This question raises the relationship between the contractual regime
embodied in the UDRP and the local law of any jurisdiction. Some of
us have exchanged views on this before. As a non-US lawyers I wonder
about the extent to which the First Amendment has any significant application
to the UDRP. A very respected US professor and UDRP panellist has suggested
that it does indeed apply as it may provide the basis for rights or
legitimate interests in respect of a domain name. However, when I read
Paragraph 4 (a) (ii) of the UDRP, it appears to be directed to a proprietary
right or interest in the domain name, which, to my way of thinking is
quite different than a right to communicate. I suspect that many other
non-US lawyers would see it that way too. If that is the correct interpretation
of the wording, it would appear that domain name owners have contracted
out of any right of free speech to the extent that it must be expressed
in a domain name that combines a trademark with a word that tarnishes
it. Does US law make it impossible to contract out of First Amendment
rights? Is there a conflict between the UDRP and US law?
Robert A Fashler
Davis & Company (Vancouver)
(2) NAF arbitration
http://www.arbforum.com/domains/decisions/94306.htm. In this decision
the Arbiter James A. Carmody was clearly unaware of the tarnishement
issues (as well as several other issues surrounding the UDRP).
"Both Complainant and Respondent have submitted lengthy and well-written
briefs and many exhibits to support issues and theories which are more
appropriately dealt with in contemporaneous litigation pending between
the parties. First and Eleventh Amendment Constitutional issues are
not within the scope of this arbitration."
"Respondent" web page athttp://www.lobofootball.com/maverick/info.html,
describes itself as "commercial enterprise formed to support UNM
Lobo Football fans." Complainant has its own websites, public relations
and athletic department spokespersons and is essentially a competitor
of Respondent with regard to sports information and commentary. Respondent
has used its domain names and related websites to disrupt the business
of Complainant. Whether or not Respondent established and maintained
the sites for personal commercial gain, I find that these sites have
been maintained in bad faith to disrupt the legitimate commercial activity
of the Complainant."
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