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Re: yet another dns namespace overlay play

  • From: William Allen Simpson
  • Date: Thu Mar 08 09:24:06 2001


Patrick Greenwell wrote:
> We really are wandering from operational content, but I simply couldn't
> pass this up because it contains so much bad information.
> >
> > -- a UDRP decision by a WIPO panel.
> >
> > Seems to have been correctly decided.  They lost on not one, not two,
> > but three issues!
> >
> > Look at those dates.  A race to the registrar, by mere days, clearly
> > designed to prevent the city from using the .com domain.
> What exactly are you talking about? The domain had been registered
> since 1996, and the site had been in operation since 1997.
Perhaps you missed the findings of fact:

February 21, 1996: 

March 5, 1996: 42 registrations by Barcelona City.

One wonders, how did Ms. Concepcio Riera Llena know that the city was
about to embark on trademark registrations and a network presence?  
Is this a city so unlike other bureaucracies that it was able to 
suddenly prepare 42 registrations in a week?

One wonders, why did it take another year for the site to go into 
operation?  Was it because Llena had no actual Internet expertise?

In Spain, the City of Barcelona has trademarked, .com, 
.net, and .org.  Excessive (in my view), but no surprise with the 
actions of Llena.

Llena tried to evade that registration by transferring "ownership" 
from Spain to a shell company in the US (June 15, 2000), where she 
does not reside, and applying for trademark on in the 
US (not granted).

The only defense mounted by Llena is essentially: I got it first, and 
have a property right, nyah, nyah, nyah.

These squatters relied on Navigator appending .com when just the word 
(in this case, "barcelona") was typed.  That's not a legitimate 
business interest.  That's "intentionally attempted to attract, for 
commercial gain, Internet users to your web site or other on-line 
location, by creating a likelihood of confusion with complainantís 
mark".  4(b)(iv).

I see a very bad actor here!

> Please see the lawsuit that the owners filed against the City Council of
> Barcelona:
You rely on a legal Complaint posted on the 'net, not even issued a 
file number?  

Where is the Answer?

How did they assert jurisdiction over a foreign entity?

What was the disposition of the case?  

> > Just the kind of behaviour that the UDRP was designed to fix.
> Guess what? The original registrants still have posession and use of the
> domain. Of course the original registrant had to go to court in order to
> prevent the theft of their domain, a theft made possible by the UDRP and
> your friends at SWIPO.
I'm not familiar with this organization. 

Do you have any remaining objectivity?

Do you understand that UDRP can be superseded by a court order?

Do you know what a "stay" means?

Do you understand that under US law, because they tried to extort 
from the city, they have a strong likelihood of losing the domain as 
punishment for their bad actions?

As I said, even had the ALJ not found misfeasance and malfeasance on 
several other issues, the extortion demand alone would have lost them 
their case under UDRP.  Now, they have to content with ACPA, which is 
stronger on this issue.

The reason we have the UDRP and ACPA is experience with these squatters 
got so bad that the legal system needed to deal with the crisis.  The 
"property right" advocates gambled with our networks, and the legal 
establishment agreed with the Internet pioneers: there is no ownership 
right in the DNS.  Established marks win.

And that's my last post on this particular topic, which has gone far 
afield of the domain pirates.

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