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HTTP/1.1 200 OK Date: Tue, 26 Sep 2000 21:35:42 GMT Server: Apache/1.2.5 Connection: close Content-Type: text/html Fresh Kill

See New Top-Level Domains - Non-Commercial Link


Welcome to the website that Louis Touton doesn't want.


KEYWESTSEAFOODMARKET.COM
"Where there's always something fishy going on" (TM)

This website is about sheer silliness, and more than perhaps the other UDRP cancelled domains, there's plenty to go around here.

For the un-initiated, Internet domain names, like the address "keywestseafoodmarket.com" upon which you've got your eyeballs trained right now, are subject to a procedure called the Uniform Dispute Policy (UDRP). The idea of the UDRP was to prevent people from ripping off trademarks on the Internet. The Policy provides an arbitration procedure in order to contest a domain name registration whenever someone with $750 in his pocket files a complaint. This Policy was put in place for a good reason, and was an attempt to solve a real problem. But the Uniform Dispute Resolution Policy is turning out to be anything but "uniform" in its predictability. That is not helpful for attorneys, trademark owners, or domain name registrants.

Let's start with the folks who wrote it. You see, the UDRP has three possible outcomes: (i) the domain name registrant keeps the name, (ii) the complainant gets the name, and (iii) the name is cancelled. Now, think about that for a second.... "What do you mean, 'cancelled'?" Well, we've been trying to figure out what that means ourselves, and we have consulted with several of the World Intellectual Property Organization's (WIPO) experts in order to figure out what genius thought of "cancellation". It didn't take very long to figure out that was a stupid idea. In fact, in the 34th WIPO UDRP proceeding, a WIPO arbitrator even said it was a stupid idea:

"Cancellation of a domain name under the Uniform Policy does not amount to an exclusion of the domain name. Once the registration is cancelled, it is possible for any person to re-register that domain name. This Administrative Panel notes that, to date, in none of the previous decisions of Administrative Panels appointed by the WIPO Center has cancellation been ordered as the appropriate remedy. In a number of the decisions of Administrative Panels appointed by the National Arbitration Foundation, cancellation has been ordered. In none of those decisions, however, was a rationale given for this remedy over the remedy of transfer to the Complainant." WIPO D2000-0034

The reason for the swipe at the National Arbitration Forum (NAF) is that there are four commercially competitive arbitration providers which decide these disputes. Since the UDRP provider is selected and paid for by the Complainant, the arbitration providers each have an incentive to be Complainant friendly. In a real arbitration, the arbitrator is selected by mutual agreement of the parties - but this isn't the real world, in which the legitimacy of government derives from the consent of the governed, this is a eurocrat's wet dream.

The funny part is that the UDRP is a boon to trademark lawyers who attend one day seminars in this stuff, and I've even heard one self-proclaimed "expert" say that requesting cancellation is a good option for clients who don't want to actually obtain control over the domain name. This is known as malpractice. The real sticker is that if the Complainant does not request transfer, then you can make a pretty good argument that they had waived the opportunity to do so. And, no folks, claiming that your attorney was a moron is usually not going to get you around an estoppel like that.

So, now that you've got some idea of what happened here, let's get to the good part. First, you have to read the NAF decision for this domain name (keywestseafoodmarket.com) which is posted HERE (click). Then come on back.... it's okay, I'll wait...

Now class, here are the review questions for you. What was the trade name of the Complainant? Well, it was Black Grouper Inc., and they run a business called Key West Fresh Fish Market. They also operate a web site at keywestseafood.com .

So far so good. Now, what was the registration number of their trademark? Oops, they didn't have one. That's not so bad. After all, one can always rely on common law trademark rights, right? Sure. But in order to do that, it would be good to have a claimed mark in which one can acquire common law trademark rights, or in which one could obtain registration.

Thank goodness for the Complainant that they weren't actually required to prove they had rights to anything. You see, the problem here is that if you are located in Key West, and you operated a seafood market, then you are perfectly entitled to call yourself a Key West seafood market, since that is an utterly mundane descriptive characterization of your business. Geographic designations are presumptively unregistrable by the U.S. Patent and Trademark Office because they are inherently descriptive.

Now, yes, even descriptive marks can acquire what trademark lawyers refer to as "secondary meaning" to indicate the owner of the alleged mark as the sole source of goods or services associated with that term. But proving secondary meaning in a descriptive mark requires a damn sight more analysis than the UDRP was designed for. Moreover, the mere fact that the Complainant had operated "keywestseafood.com" does not provide them with trademark rights without such a showing of acquired distinctiveness. There have been a raft of other UDRP decisions where people with names like "pet warehouse" have spent good money to find out that if you operate a "pet warehouse" and that's the name you use, then you'll just have to live with the fact that other pet warehouse operators are going to use variations on that name.

The high point of the decision, for humor value, has to be, "Many of the Respondent’s products are identical to the Complainant’s products. " Now don't tell me, let me guess. They were selling seafood, right? I'll bet it came from somewhere near Key West.

We do not know why the domain name owner didn't respond. Yet. But we do know that panels have a choice when the domain name owner does not respond. The absence of a response does not at all change the Policy's requirement that the Complainant prove that they have trademark or servicemark rights, that the domain name owner has no rights in the domain, and that the domain name was registered and used in bad faith. However, UDRP panels have been all over the map on the question of whether the absence of a response results in a simple default judgment for the Complainant, or whether the Complainant still has to be held to have proved anything. Given that some people sign blanket "waiver of signature" forms for courier services, the best thing that can be said to anyone who owns a domain name is "don't leave home for too long if you have a web-based business." Whether the domain name owner had actual notice of a dispute is not verified. And when it's over, it's over.


The story behind the ownership of this domain:

In our continuing quest to fix the Uniform Dispute Resolution Policy, we initially registered this domain as a gift to Mr. Louis Touton of ICANN in the hope that he could figure out what to do with it. During a brief vacation thereafter, we were informed that Mr. Touton had declined to accept this gift. In the event Mr. Touton changes his mind, we will gladly transfer it back to him.

It appears that Mr. Touton may be occupied with other things at the moment, such as figuring out what to say when the California Attorney General gets around to figuring out how a California Public-Benefit Corporation manages to get by without any identifiable members. You see, you can form a California Public-Benefit Corporation and call your "members" whatever it is you want. The thing is, there is case support for the notion that when you have a non-profit corporation, and when you have a bunch of people who vote for directors, then them folks doing the voting are "members" under the California Public-Benefit Corporation Law.

Are you sure you don't want this domain name back, Mr. Touton?

Date: Mon, 21 Aug 2000 17:41:32 -0700
From: Louis Touton
To: Karl Auerbach
Subject: Your Requests for Names and Contact Information

Dear Mr. Auerbach:

I am responding to your two e-mail inquiries dated 17 Aug 2000. Your
inquiries request that you be provided with the name and contact
information (including e-mail addresses) for voters who later this
year will cast votes for nominees to ICANN's board of directors.
Your first request asserts that you are entitled to this personal
voter information by virtue of the fact that you are a candidate for
nomination to the ICANN's board of directors. Your second request
asserts that you are entitled to this information by virtue of the
fact that you are an ICANN at-large "member."

The information you are seeking reveals personal details about tens
of thousands of individuals throughout the world who have signed up
to participate in the ICANN at-large program. That program, which is
designed to provide Internet users globally with at-large representation
on ICANN's board of directors, was developed through a 19-month process
with extensive input and participation from the Internet community.
Throughout that process, concerns were regularly and forcefully
expressed that individual voters in the program should not be
subjected to unchecked waves of unsolicited e-mails appealing for
support, particularly when any individual anywhere in the world is
entitled to become a candidate. With over 158,000 at-large
applications, and 161 candidates, the concerns about unsolicited
e-mail appear to have been well-founded. As a result of these
concerns, the at-large selection plan that was adopted provides for
voter education about the candidates to occur through web sites
provided by the candidates (and web pages provided for each
candidate by ICANN), combined with periodic, brief, and neutral
e-mailings sent by ICANN referring the voters to those web pages
and sites. To preserve voter privacy, the selection plan specifically
provides that candidates themselves should not have access to the
at-large voter lists or email addresses.

As to your first request, I am not aware of any legal basis on which
a candidate running for a seat on ICANN's board of directors is
entitled to the personal information about voters that you are seeking.
To the contrary, in response to concerns over personal privacy, the
ICANN Board, Membership Advisory Committee, and Election Committee
each has determined that ICANN should not facilitate candidates
sending unsolicited e-mail to the voters, and ICANN has undertaken
the responsibility to keep the members informed about the process
and the location of the candidates' web pages, in lieu of giving
candidates access to voter lists. You are aware of your ability
to communicate with members in this fashion, and we encourage you
to do so.

With regard to your second request, Article II, Section 1 of ICANN's
bylaws states:

The Corporation shall not have members as defined in the
California Nonprofit Public Benefit Corporation Law ("CNPBCL"),
notwithstanding the use of the term "Member" in these bylaws, in
a selection plan adopted by Board resolution, or in any other
action of the Board. Instead, the Corporation shall allow individuals
(described in these bylaws as "Members") to participate in the
activities of the Corporation as described in this Article II and
in a selection plan adopted by Board resolution, and only to the
extent set forth in this Article II and in a selection plan adopted
by Board resolution.

In view of this section, ICANN's "members" are nonstatutory ones,
and the California Corporations Code provisions cited in your second
request as supporting a statutory member's right to membership lists
are inapplicable. I am not aware of any other legal basis on which
an ICANN at-large "member" is entitled to receive personal information
about the voters, and ICANN has not provided this information to
any other "members" or board candidates.

In the event you remain concerned about these issues, I would invite you
to provide me with a more complete explanation of why you believe you
are entitled to the membership name and contact information so that we
can better evaluate your request.


Regards,


Louis Touton
Vice President, Secretary
and General Counsel


For more UDRP Fun and Games, visit HOLLYWOODGOLDCASINO.COM

Note: The UDRP Cancelled Domain Collection project is a thoroughly non-commercial project dedicated to making a political point about DNS management, and using the UDRP "cancel" procedure as a classic case in point of what happens when stupid people are asked to do something requiring thought. These domains are not for sale, and we have no intention of making a single penny off of this hobby, or of disparaging the fine products of the folks who should really be wondering why they decided to waive their opportunity to obtain transfer of the domain name about now.

Fish graphic courtesy of artie.com
Comments?
Send email to keywest@johnberryhill.com

John Berryhill, Ph.D. esq.
Philadelphia, Pennsylvania