‘Cybersquatter’ Sallen in landmark court case

UDRP rules in jeopardy

Jay D Sallen - the man found guilty of cybersquatting on the domain Corinthians.com by domain name arbitrator WIPO in July last year - is poised to change ownership in cyberspace forever, and for the better.

Mr Sallen was ordered to hand over the Corinthians.com domain to a Brazilian football team of that name by a sole WIPO pannelist. Under the flawed rules on domain disputes used by WIPO - UDRP - Mr Sallen was found to have no rights or legitimate interests in the domain, which he used to post Biblical scipture.

Mr Sallen was so unhappy with the judgment that he decided to take it to the courts. However, despite pointing to an important clash between UDRP, WIPO's interpretation of it and the new Anticybersquatting Consumer Protection Act (ACPA), US District Court Judge William Young decided not to hear the case.

Judge Young's basic argument was that Mr Sallen had agreed to abide by the WIPO decision by taking part in the arbitration process and hence was legally required to accept it.

Mr Sallen and his lawyer, Linda Harvey, appealed against the decision and last week, the Appeal Court overturned the ruling, as well as making some disparaging comments about UDRP and WIPO in general.

No date has been set for a trial yet, and Ms Harvey told us there were still a large number of unanswered legal questions but in what is a David against Goliath battle, she is convinced Mr Sallen's arguments will defeat the two legal firms defending the Corinthians football team.

The court case itself is about clearing Mr Sallen from any accusation of cybersquatting (he claims he had never heard of the Corinthians football team before being contacted by it in Spetember 1999. He had registered the domain in August 1998). However, as the Appeal Court judges point out several times in their judgment, if he is cleared of cybersquatting, it effectively undermines WIPO's decision and subsequently UDRP itself.

Once so undermined, it could potentially open every previous decision made using UDRP to a judicial review. This in itself could make UDRP - widely seen as flawed and skewed towards big business - untenable and force a rethink of domain arbitration.

An increasing number of critics have been urging Internet overseeing body ICANN to do just this for more than a year but so far the organisation has refused to discuss the issue or order a review. Thanks to UDRP's makeup and some peculiar thinking by arbitrators - then used as a basis for future decisions - the problems with the system grow ever more visible over time.

Of course, all this depends upon Mr Sallen winning the court case, which will most likely be a one-day trial taking place any time from a month to a year's time. But if the Appeal Court judges' feelings are anything to go by, the much-derided system may be in serious jeopardy.

In their judgment, they slam WIPO's interpretation of UDRP, referring to it as the "lowest common denominator of internationally agreed and accepted principles concerning the abuse of trademarks".

They query WIPO's finding that Sallen had no rights to or legitimate interests in the domain, noting "a finding by a federal court that Sallen was within his rights when he used corinthians.com to post Biblical quotes would directly undercut the panel's conclusion".

They also say "a court's decision that a party is not a cybersquatter under the ACPA, and that a party has a right to use a domain name, necessarily negates a WIPO decision that a party is a cybersquatter under the UDRP".

This judgment, the forthcoming court case and the fact that one of the four domain arbitrators - eResolution - quit this month, citing the impossibility of working in the current system mean that the writing may finally be on the wall for UDRP and WIPO. ®

Related Links

The Appeal Court judgment
WIPO decision on Corinthians.com

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