<<< Will these posts ACTUALLY be considered by
ICANN? I hope so! >>
I seriously doubt ICANN will even more than glance
in this direction. And I expect WIPO cares even less than ICANN does, about what
we say on this message board.
WIPO will be smacked down hard, I feel, when enough
dissent has transpired. But not before doing some terrible damage to people, to law
and litigation, to businessess and to the concept of freedom; I think WIPO will eventually
be either dismantled or restructured. At that time the arbiters will leave their
posts, content that they helped shape a world, and advanced legislation even though
they were not voted in to be legistlators.
Think about how that impacts the system,
and ordinary lives.
I DO believe many of the arbiters are operating in a capacity
beyond their mandate, intoxicated by the power that they have. And I DO believe they
have a hidden agenda as it relates to the their ultimate legal specialty: trademark
law and litigation. I fully believe that these individuals seek to set a precedent
on the books that will advance the field in which they have served their lives--and
their names will be circumscribed alongside their rulings--rulings that can operate
as pseudo or de facto laws. Noteriety, even of a dubious sort, is appealing, is it
not?
These are people that don't seek to rule according to law. These are people
who want to push the envelope and rule in a way as if they were WRITING law.
When
the arbiters made their decision to give Crew.com to J-Crew, the clothing manufacturer,
there was one dissenting arbiter, G. Gervaise Davis III, who did not sanction the
turn-over of the domain. He said as follows:
_________________________________________________
DISSENT
BY PANELIST
"I respectfully dissent from the decision of the majority of this panel
because their decision creates and applies a test for "abusive domain name registrations"
which is not, in my opinion, part of the ICANN Uniform Dispute Resolution Policy
nor consonant with the stated and very limited purpose of this Policy. It does so
in what I deem a mistaken view that it is up to the panel to enforce a non-existent
policy of ICANN to prevent people from registering domain names for resale to others
than the trademark owner. Whether such activity is proper or improper is not before
us under the ICANN Policy and we do not, in any event, have the authority to so decide
under the ICANN rules. Even if the decision were correct under the Anti-Cybersquatting
Consumer Protection Act 1, which I do not think is the case, we are not here authorized
to apply that Act which differs significantly from the ICANN Policy and Rules. The
majority decision goes far beyond the scope of the present ICANN Policy....................
".............. We are not legislators, but arbitrators. The majority, in an effort
to stop a practice that it seems to take upon itself to believe is an unstated purpose
of the ICANN Policy, has completely over-stepped its mandate as arbitrators. The
decision creates a new and unauthorized test out of whole cloth, based on assumptions
of fact by arbitrators without evidence on the subject, instead of using the appropriate
and carefully crafted three step test for required evidence set out by the ICANN’
Policy and Rules. In my judgment, the majority's decision prohibits conduct which
was not intended to be regulated by the ICANN policy. This creates a dangerous and
unauthorized situation whereby the registration and use of common generic words as
domains can be prevented by trademark owners wishing to own their generic trademarks
in gross. I cannot and will not agree to any such decision, which is fundamentally
wrong. I respectfully dissent from the majority decision of my fellow professional
panelists."
_____________________________________________________
The above
statement by this one exceptional dissenting WIPO arbiter is profound. To him, I
tip my hat in respect and exclude him from the comments I level on WIPO above and
in other posts.
Read his full statement, and the ruling of the other arbiters at:
http://arbiter.wipo.int/domains/decisions/html/d2000-0054.html
__________________________________________________________