WIPO Says A Parked Page “Is NOT A Legitimate Or Bona Fide Use” In Taking Away A Generic Domain SaveChildren.com Away
In a WIPO decision released today, a sole panelist Harrie R. Samaras, awarded a generic domain name, savechildren.com to the charitable organization, Save the Children.
The complainant of course holds a federal trademark for “save the children” but does not hold any mark for “Save Children”
In giving the domain to the charity the panelist stated:
“”The format of Respondent’s website is that of a pay-per-click site, i.e., a site that generates money for Respondent each time a user clicks on one of the hyperlinks.”
“Such a use is not a legitimate or bona fide use of the Domain Name.”
There are of course other factors at play which lead to this outcome, but the fact that this panelist made the blank statement regarding his feelings towards a parked page is extremely troubling as it goes against many other cases in which a parked page was found to be a bona fide use.
The inconsistency in opinions on basic legal principals, is what makes these WIPO cases a real crap shoot.
Loading ...
Even more troubling was how the panelist illogically equates “Save the Children” with “save children”.
The justification that it merely omits “the” in the middle is ridiculous. It needs to be at the beginning of the domain for his argument to make sense.
I can see how “Save the Children” can be a Brand/TM, but “save children” cannot; it is merely descriptive.
On another note, I’m glad they won if it will have a greater impact on saving lives even though the decision was obviously wrong.
This is another reason that I always recommend paying for a 3 person panel.
Good morning Mr Beale…
The final December 15th Recommendations of the Special Trademark Issues Review Team, constituted to advise the GNSO on IP policy for new gTLDs, takes a very contrary view. (Report available at http://icann.org/en/announcements/announcement-2-17dec09-en.htm )
Specifically, in regard to the Evaluation of a case brought under the revised version of Universal Rapid Suspension (URS) recommended by the STI-RT (see pp. 44-46) an explicit Safe Harbor is provided for domain parking, as follow:
“Sale of traffic (i.e. connecting domain names to parking pages and earning clickper-view revenue) does not in and of itself constitute abuse under the Policy.
Such conduct, however, may be abusive in a given case depending on the
circumstances of the dispute. The Examiner will take into account:
i. the nature of the Domain Name;
ii. the nature of the advertising links on any parking page associated with
the Domain Name; and
iii. that the use of the Domain Name is ultimately the Registrant’s
responsibility.”
The Recommendations have been unanimously approved by the GNSO and are now out for public comment until January 26, 2010. ICA participated in the work of the STI-RT and plans to file a comment.
Assuming that the recommendations are adopted by the ICANN Board, ICANN will be taking an official position that, as regards the URS (for which the burden of proving infringement is higher than for the UDRP) domain parking is not only a bona fide use but is to be provided with a general safe harbor — with a favorable presumption for the registrant that must be overcome by specific facts provided by the complainant.
In this context the WIPO decision is even more clearly eroneous — and this is why domainers need comprehensive UDRP reform that restores uniformity and places the arbitration providers under clear contractual obligations and limits.
this decision is disturbing as well… there is active legal proceedings already occurring, admitted by the complainant… and yet still the panelist reasons that the UDRP complaint somehow is better suited to make a decision (one without any input from respondent and one that ignores a TM -of the Respondent!)
http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1400.html
In a UDRP decision of mine the panel states that using a domain for PPC is a legitimate business.
They should all get together and figure this out…so they don’t contradict each other.
I have a feeling I will be seeing this case mentioned in the future.
How dare somebody get paid everytime someone clicks the links on their website. That is just horrible.
Is it illegal? No. Is it a living? Yes.
BS.
That statement in the decision is bonafide crap
Near where I live we have the Del Mar fairgrounds where the Del Mar horse races are held. Across the street and up a block from the races is a large open lot. The owner of this lot chooses not to build anything on it an this is a super prime location. What the owner does use it for is they charge $10 a day for parking in it on busy race days, or during the. County fair. Otherwise the lot is vacant. So I guess then that that is not a bonafide use of that land.
BS
Just file a lawsuit every time WIPO brings a case. Don’t let it go to UDRP.
The panelist was wrong in his assessment. Parking is targeted search = business model. Period. He allowed personal bias and/or ignorance to sway his decision. Unjust, but typical low integrity people contaminating a loosely regulated process. Welcome to UDRP land.
As stated, UDRP precedent already established on the legitimate business of targeted search/PPC/parking.
Hm…”crap shoot”… exactly what I said in the other thread re: respondent’s prior reputation in context of UDRP
No consistency whatsoever. One can find “precedents” to find for either party.
Damn fool panelist – by her reckoning, Google.com with the PPC links is also not a bona fide business..
That said, respondent 1/ had a prior reputaion and “history” with the UDRP and 2/ did not respond…so one can only guess as to the outcome in the absence of these
Like I said, many panelists seem to be making decisons based on an “overall” approach and coming up with “facts” that fit the decision
As WQ said, the contradiction with previous decisions (numerous, actually) that state PPC parking of domains is a legitimate, bona fide use is scandalous. It’s not merely a subjective interpretation of a law, it’s a full reversal.
The problem with UDRP and parking sites is only one thing: the actual use of a domain name in connection with a parking site may well regarded as legitimate use if the domain name is merely generic (except when the generic term has a secondary meaning, like “Apple”, and the trademark is well-known). On the other hand, domain parking is not a legitimate use and indicates bad faith use when a domain name includes trademarked words. Some panelists seem to have a problem with this question…
Where do they find these ****heads?
Is there no guidelines for them to follow? Beyond looking at the tidal wave of cases that have already set the record straight that parking pages are a bona fide use of a domain, does this arbitrator not have the common sense to distinguish fair use from bad faith?
This is possibly the start of an avalanche of cases where parking might be viewed (based on the precedent set here) as a bad faith activity, and hence grounds for transfer to the complainants – whether on the merits of the complaint, or not.
These ****ing ****suckers who think they are the masters of the universe, handing out domains based on some grossly misguided and biased view of “parking” can eat **** and hopefully get run over by a reindeer while gloating in their overzealous view of the domaining industry! ICANN is a shameful, money wasting entity that should be abolished – **** them too!
Let her know how you feel:
HARRIE R. SAMARAS
Phone: (610) 993-4221
E-mail: hsamaras@ratnerprestia.com
Question, as a respondent, if you file a lawsuit instead of going thru arbitrtion. Canyou file in your home state? or does it have to b done in the state where the registrar is located?
When is this crazy era going to be over?
The guy had built traffic in an honest manner and there is not mention of him abusing the organization’s good name.
I would have given them a link for free. To help the organization “Save the Children” I would have put a premanent 200 x 2″ ad.
Jeez, what happen to basic respect and communications? The Internet is new, let’s figure it out and play nicely.
stevec
right or wrong – it is true and done… therefore, it has happened – it is fact.
Name calling, showing anger does nothing to change the fact.
The real question (I think) is does this begin to open the doors for any trademark to start gathering like generic (parked) domains for themselves?
If you have a number of generic domains – maybe want to rethink ‘parking’ and point to something different to protect ‘asset’.
Phillip
The door is wide opened at this point for trademark holders to go after domains.
Let’s not forget that both WIPO and UDRP are proposing even fast, quicker and cheaper methods for trademark holders to make claims.
Also we have written about decisions where domains were taken that went to a non-resolving page, or went to a registrar’s landing page.
The problem for domain owners is there is no other solution for monetizing a large number of domains other than parking.