GNSO working group

Fri Jun 19 12:21:35 CEST 2009

Dear Edward and all,

Gripe/commentary¹ sites as abusive is a pattern that has been established
and is being promoted as a normative justification via the UDRP. So far it
is exemplified mainly via the addition of the negative connotation <.sucks>
next to the trademarked term in the SLD space and up to this day UDRP panels
consider gripe sites as abusive and thus they transfer the domain name to
the trademark owner. See for instance the latest UDRP case on <.sucks>,
which clearly illustrates this normative pattern: ( Société Air France v.
Mark Allaye-Chan, WIPO D2009-0327 (³The disputed domain name contains the
Complainant¹s entire trade mark. However, it also contains the suffix
³-suck². The disputed domain name therefore falls within the category of
so-called ³sucks² cases (where a trade mark is joined with a negative term).
Previous panels who encounter ³sucks² cases have found that a domain names
can be confusingly similar to the trade mark for various reasons, including
because the disputed domain name is highly similar to the trade mark; or
because the domain name may not be recognized as negative (for example, for
non-English speaking Internet users). This view (that ³sucks² domain names
are confusingly similar to the trade mark) is the majority view of previous
panels, and may even be the consensus view. See e.g., Sermo, Inc. v.
CatalystMD LLC, WIPO Case No. D2008-0647, Footnote 5; Air Austral v. Tian Yi
Tong Investment Ltd., WIPO Case No. D2009-0020. It is in any event the
Panel¹s preferred view in these circumstances, particularly because the
Complainant originated in France, and may have a significant number of
non-English speaking customers who will not automatically recognize ³suck²
as a pejorative term.)
This is not only contrary to free speech but it is also contrary to
trademark and defamation laws. As stated, the US has already allowed gripe
sites to co-exist in harmony with trademarks  the same way Nominet, UK has
incorporated a specific clause within their own dispute resolution services.
This should be added as well as issues of RDNH, which nobody seems to give
the appropriate attention to.

Best 
Konstantinos

On 18/06/2009 20:20, "Milton L Mueller" <mueller at SYR.EDU> wrote:

> Wow. I just noticed that the list of abuses contains ³gripe/commentary² sites.
> In other words, this is an attempt to define free expression and commentary
> using trademarked names as an abuse  it is just an attempt to stifle
> criticism. 
>  
> Edward, that has to go. First, it does not represent well-established
> positions of this constituency; second it is literally ILLEGAL under U.S. law
>  it is well settled case law now that the use of trademarked names in grip
> domains is legal and protected by the First Amendment.
>  
> 
> 
> From: Non-Commercial User Constituency [mailto:NCUC-DISCUSS at LISTSERV.SYR.EDU]
> On Behalf Of Edward Nunes
> Sent: Tuesday, June 16, 2009 8:16 PM
> To: NCUC-DISCUSS at LISTSERV.SYR.EDU
> Subject: Re: [NCUC-DISCUSS] GNSO working group
>  
> Hey all,
> 
> I just wanted to update you all on what's been happening with the Registration
> Abuse Policy Working Group.
> 
> Since I joined the GNSO Registration Abuse Policies Working Group the
> discussion within the group has focused on the definition of registration
> abuse. During the April 27th meeting we decided on a working definition of
> abuse:
> 
>  
> 
> Abuse is an action that:
> 
> 1. Causes actual and substantial harm, or is a material predicate of such
> harm, and
> 
> 2. Is illegal or illegitimate, or is otherwise considered contrary to the
> intention and design of a stated legitimate purpose, if such purpose is
> disclosed.
> 
> Notes:
> 
> * This is a working definition as per group consensus on April 27, 2009 and
> may be re-visited should the WG find it inadequate after examining some
> specific examples.
> 
> * The party or parties harmed, and the substance or severity of the abuse,
> should be identified and discussed in relation to a specific proposed abuse.
> 
> * The term "harm" is not intended to shield a party from fair market
> competition.
> 
> * The above definition of abuse is indebted to the definition of "misuse" in
> the document "Working Definitions for Key Terms that May be Used in Future
> WHOIS Studies" prepared by the GNSO Drafting Team [18 February 2009, at
> http://gnso.icann.org/issues/whois/whois-working-definitions-study-terms-18feb
> 09.pdf].
> 
> While this is the definition we are sticking with for now, there has been
> numerous issued raised about this definition both in and outside the working
> group. Issues raised included:
> 
> ·      The use of ³stated² and ³disclosed in clause 2 is redundant.
> 
> ·      The use of ³illegal² and ³illegitimate² in clause 2 is redundant.
> 
> ·      There should be an intent requirement for violators, so as to limit
> abuse to malicious abusers.
> 
> ·      ³Illegal² is too vague of a term, as the law varies among the
> jurisdictions of the world.
> 
> ·      ³Harm² is too broad of a term.
> 
> ·      The section ³material predicate of such harm² creates an overly broad
> definition of abuse.
> 
> ·      ³Illegitimate² is too vague of a term.
> 
> ·      ³Illegal² is a legal conclusion derived from a court proceeding.
> 
> o    There has been some preliminary talk about the process to determine if
> whether something constitutes registration abuse, but no decisions have been
> made on this subject.
> 
> While we are sticking with this definition for now, we understand there are
> issues with it and expect to revisit it at a later time.
> In the May 11th meeting we focused on defining ³registration², and how this
> definition will effect th
> 
> -- 
> Dr. Konstantinos Komaitis,
> Lecturer in Law,
> GigaNet Membership Chair,
> University of Strathclyde,
> The Lord Hope Building,
> 141 St. James Road,
> Glasgow, G4 0LT,
> UK
> tel: +44 (0)141 548 4306
> email: k.komaitis at strath.ac.uk 

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