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Competitive Justice?: The Role of Dispute Resolution Providers under ICANN’s UDRP

John Selby, with the Department of Business Law at Macquarie University in Sydney Australia, brought to my attention his truly excellent article and study of ICANN UDRP Dispute Resolution Providers.

This article was published in 2004, and the concerns outlined therein are even more important today, given that the Czech Arbitration Court apparently intends to provide so-called 'fast track' UDRP's on the cheap.

And kudos to Jim Davies at Wrays Patent and Trademark Attorneys, also from Australia, for taking this new radical and arguably unmandated approach to UDRP's to task, in his article.

New Domain Name Arbitration Study Release and NAF Case Update Tool

Today I released a brief study of NAF decisions, and panelist participation levels in particular. I also created a system for people to receive NAF Case Updates in their email box, similar to the way that WIPO sends them out. Hopefully NAF will do this themselves in the future and at that time I can stop the Update service.

Canadian ICANN Official Loses Arbitration

But its not what you think....

In this Ottawa Citizen story, Canadian, Frank Fowlie, ombudsman for the Internet Corporation for Assigned Names and Numbers (ICANN), was flying from Paris to Montreal last March when he had an angry confrontation with a flight attendant in executive class.

The story states that, "He filed a complaint with the CTA, alleging Air Canada breached the terms and conditions of carrying passengers internationally that it is required to follow.

Fowlie says he brought the complaint chiefly to get an apology from the airline, not for financial compensation.

Fowlie says he is a SuperElite member of the airline's frequent-flyer program and regularly logs 240,000 kilometres a year in his work as ombudsman for the ICANN.

"If this is how they treat one of their best customers, how do they treat a casual flyer?"

He says the airline has a corporate culture that "views customers as cattle" because of its history of financial pressures.

He also says the older air crews that work on Air Canada flights are less willing to put themselves out to help passengers, compared with the younger crews on other airlines.

The CTA last week dismissed his complaint, however, saying it was satisfied Fowlie engaged in abusive and offensive behaviour and said he hadn't proved otherwise."

My sympathies are with Fowlie here. Lord knows that treatment on Air Canada for regular travelers, let alone Super Elites, is pathetic. I am sure he was rightly pissed off, and the Air Canada staff tried to paint him as unruly and dangerous.

Groovle Case Featured in Excellent Article on ADR in Lawyers Weekly

Journalist Christopher Guly has written an excellent piece on the UDRP and how it is at the vanguard of online alternative dispute resolution. In this article, Mr. Guly discusses the Groovle.com case and interviews me about the case and about the UDRP.

Canada Missing Digital Revolution

In this concerning article from the National Post, journalist Matt Hartley, reports that Google's Canadian born CFO, Patrick Pichette, "has a unique view of the business landscape in his home country of Canada."

Mr. Hartley reports that, "although Canadians spend more time online than just about any other nation in the world, advertising dollars and marketers haven't followed audiences online to the same degree as in other countries such as the United States and the United Kingdom."

Mr. Hartley also reports that according to Google CFO, Mr. Pichette, in Canada "the needle hasn't moved yet in any significant way" and "Canadian companies do not spend what would be required to actually capture the advertising opportunity; they are staying traditional in their behaviour and mindset."

Which is hardly news for me. Just take a look at the lack of any significant market for .CA domain names and the lacklustre number and depth of Internet players in Canada.

Hopefully comments from qualified observers of Canada such as Mr. Pichette, will not fall upon deaf ears. Canada needs a wake up call, if it is not already too late.

Solid UDRP Decision From Panelist Jonathan Turner

WIPO UDRP Panelist, Jonathan Turner, deserves kudos for authoring a fine decision which makes excellent use of appropriate and highly relevant case law, in the aidsdrugsonline.com case (February 5, 2010).

He wrote as follows in this case brought by a Canadian against a Californian, wherein the Complainant alleged that the Respondent was a "cybersquatter":

"The more descriptive the term, the more extensive must normally be the use, if it is to acquire such a secondary meaning and become distinctive of a particular company. Where a term is highly descriptive, even very extensive use may be insufficient to establish the requisite secondary meaning, as is illustrated in Canadian and United States law by Canadian Shredded Wheat Co. Ltd. v. Kellogg Co. of Canada Ltd. [1938] 1 All ER 618 and Kellogg Co. v. National Biscuit Co., 305 U.S. 111.

In this case, the Complainant has not provided any specific evidence as to the extent or nature of its use of the term in which it claims rights, apart from mentioning its website which is located by a domain name consisting of the alleged mark. The Complainant has not stated the value of its sales using the alleged mark or of its expenditure on any advertising or other promotion under the mark. Nor has it disclosed the nature of any advertising or promotion. There is no evidence showing that consumers have been taught to regard or have come to perceive the term as a brand. "

Mr. Turner's excellent reference to appropriate and highly relevant case law (the "shredded wheat" cases) is of particular interest to me as I relied on the Canadian "shredded wheat" case in the CHEAP TICKETS case (See Paragraph 15 of Justice Strayer's decision).