Request for Reconsideration Request 01-6 Submitted by: Russ Smith Date: 20 May 2000

-------- Original Message --------
Subject: Reconsideration request-UDRP related
Date: Sat, 20 May 2000 00:57:53 -0400
From: russ@consumer.net (Russ Smith)
To: <reconsider@icann.org>
CC: <arbiter.mail@wipo.int>, "Francis Gurry"
<francis.gurry@wipo.int>,<touton@icann.org>, " \( Arbiter.Mail \)"
<arbiter.mail@wipo.int>,"Arif Ali" <arif.ali@wipo.int>, "Deborah Enix"
<deborah.enix@wipo.int>,"Erik Wilbers" <erik.wilbers@wipo.int>,"Patricia
Simao" <patricia.simao@wipo.int>,
<dryan@davies.com.au>,<r_fashler@davis.ca>, "Schaber, Michelle"
<mschaber@ARB-FORUM.COM>,<wbowser@ARB-FORUM.COM>, <carmody@lawyer.com>

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.

===

-----Original Message-----
From: owner-inta@interport.net [mailto:owner-inta@interport.net] On Behalf Of intanet-l@inta.org
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)
T +1.604.643.2975
F +1.604.687.1612
C +1.604.716.8204
E rob_fashler@davis.ca
+++++++++++++++++++++++++++++++


===


(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."

Russ Smith