Feeds

Tom Cruise wins TomCruise.com

Decision exposes systemic flaws

Boost IT visibility and business value

Implications

If this decision is used for future decisions (which is what happens with unhelpful frequency), the implication is that the slightest income from a website or related website (Google Ads?) could be used to undermine a freedom of speech defence and see domains handed over.

The panel also unconvincingly dismisses Burgar's point that a 10-year delay is unacceptable. Burgar quotes a UDRP decision by a different domain arbitrator (NAF) in which it decided that a two-year was sufficient delay for rights in the domain to have been lost. The panel dismisses this, saying that the panel in that case had made a "mystifying" decision and denied that there was a "meaningful precedent under the Policy for refusing to enforce trademark rights on the basis of a delay in bringing a claim following use of a disputed domain name".

Since there was also not "substantial evidence" that indicated Cruise had approved of or condoned Burgar's use of the domain, it was "not prepared to import a bar against his cause".

It's hard to escape the feeling that the WIPO panel has, for the 1,000th time, looked for a reason to hand over the domain rather than follow the resolution process to reach a decision.

Flawed system

Since future decisions are frequently made by referring to older decisions, rather than taking each case on its own merits, an already flawed system is starting to wander off on its own, unwelcome tangent.

This flawed process is also demonstrated in the choice of panellists. WIPO itself chooses individual panellists in an opaque and controversial process which, it is well documented, hugely favours those who choose most regularly for the complainant.

In a three-person panel, the complainant choses one panellist, the respondent the second, and the two seek to reach agreement on the third. If they cannot, WIPO decides for them.

In the Tom Cruise case, Cruise's lawyers chose Sally M. Abel, who, according to the most recent figures we have from UDRPinfo.com, has voted in the complainant favour in 83 per cent of cases. Burgar chose David Sorkin who has voted in the complainant favour in just 33 per cent of cases. The 50 per cent disparity between the two illustrates the highly unusual differences in opinion between experts in a process that has run for nearly a decade.

The presiding panellist, chosen it is assumed by WIPO, is one of the most frequent UDRP panellists, Frederick M. Abbott, who has voted in the complainant's favour in 79 per cent of cases.

The UDRP process (there is no appeal) has become so polarised that if you were provided with the names of the panellists in any given case, you could predict with almost complete certainly what the outcome was, regardless of the merits of the case actually being heard.

So while Jeff Burgar is an extreme example of a domain registrant, Tom Cruise's victory serves only to highlight the need to reform the domain arbitration process. ®

Related link

WIPO's decision on TomCruise.com

The Essential Guide to IT Transformation

More from The Register

next story
BBC goes offline in MASSIVE COCKUP: Stephen Fry partly muzzled
Auntie tight-lipped as major outage rolls on
iPad? More like iFAD: We reveal why Apple fell into IBM's arms
But never fear fanbois, you're still lapping up iPhones, Macs
Sonos AXES support for Apple's iOS4 and 5
Want to use your iThing? You can't - it's too old
Stick a 4K in them: Super high-res TVs are DONE
4,000 pixels is niche now... Don't say we didn't warn you
Philip K Dick 'Nazi alternate reality' story to be made into TV series
Amazon Studios, Ridley Scott firm to produce The Man in the High Castle
There's NOTHING on TV in Europe – American video DOMINATES
Even France's mega subsidies don't stop US content onslaught
You! Pirate! Stop pirating, or we shall admonish you politely. Repeatedly, if necessary
And we shall go about telling people you smell. No, not really
Too many IT conferences to cover? MICROSOFT to the RESCUE!
Yet more word of cuts emerges from Redmond
Joe Average isn't worth $10 a year to Mark Zuckerberg
The Social Network deflates the PC resurgence with mobile-only usage prediction
prev story

Whitepapers

Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
The Essential Guide to IT Transformation
ServiceNow discusses three IT transformations that can help CIO's automate IT services to transform IT and the enterprise.
Consolidation: The Foundation for IT Business Transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.
How modern custom applications can spur business growth
Learn how to create, deploy and manage custom applications without consuming or expanding the need for scarce, expensive IT resources.
Build a business case: developing custom apps
Learn how to maximize the value of custom applications by accelerating and simplifying their development.