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The W - CRZ's World - MEDIAITE COMMENT WHICH DIDN'T GET POSTED OF THE DAY
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CRZ
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Since: 9.12.01
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#1 Posted on | Instant Rating: 8.23
I submitted this post, but it triggered some moderation thing and didn't get posted, so I'm posting it here, instead. For context, Tucker Carlson acquired keitholbermann.com and announced it yesterday by redirecting it to his site The Daily Caller (dailycaller.com), along with some - I believe you could characterise it as "gloating" containing words to that effect. Over at Mediaite, it was quickly speculated that this would be an open-n-shut case if Keith took action to try to wrest the domain from him. Knowing that this wasn't necessarily the case (and I think most of us remember how I became intimately involved in a particular dispute, which proved fruitless, &c. &c.), I said so, and *I* was met with some skepticism. We continue the discussion from there over here...
    Originally posted by Jackie_Treehorn over at Mediaite (mediaite.com)
    I have 0% real life experience with domain name issues
With all due respect...perhaps you should have stopped there, then.

I'm sorry I'm harping on and on about this, but it was either post one more time here to make my case and convince nobody, or make my way through that 150-some-odd comment flamefest I'm sure Mediaite's real proud of over there. Thanks, insomnia!

My main point is, if I'm Tucker and I already hold the domain, when I get that hypothetical dispute, I only have to prove ONE of the three criteria hasn't been met to keep my domain. So, hypothetically, I'm picking 4(a)(ii), which is this one (and I hope I have all my blockquote tags correct here and apologise in advance if I don't):
Now, this means that hypothetical Keith would have to prove that hypothetical Tucker has no rights or legitimate interests in respect of the domain name.

Fortunately, the UDRP is pretty clear on what this clause exactly means:
    http://www.icann.org/​​en/​​dndr/​​udrp/​​policy.htm#4c
    c. How to Demonstrate Your Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint. When you receive a complaint, you should refer to Paragraph 5 of the Rules of Procedure in determining how your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):

    (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

    (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

    (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Those are all "ors" up there, so you only gotta prove ONE of them to make the case. In my opinion - and hopefully yours too, eventually - Tucker pretty much satisfied 4(c)(i) several different ways yesterday: he made public his intent to use the domain name "in connection with a bona fide offering of goods or services," he redirected it to dailycaller.com and mentioned it was keitholbermann.com; he answered emails coming to the domain name; he talked about future plans for the domain name - sounds like "demonstrable preparations" to me. He can take even further action if you don't think he's proven it yet, but I think he's done more than enough.

So in short, if you prove 4(c)(i) - and I think he has and I have - you disprove 4(a)(ii), therefore you disprove the entire complaint. That is ALL it takes. You keep the domain name - and you best remember to renew it on time for the rest of eternity!

Executive version, because I love repeating myself AND hearing the sound of my own typing: If I can prove that criteria 2 isn't met, IT DOES NOT MATTER whether or not criteria 1 or 3 are met or not. I don't HAVE to prove or disprove them, because I've already disproven 2. "1, 2, and 3" cannot be proven without 2; therefore the hypothetical arbitrator has to deny Keith's hypothetical request for a transfer.

Ah, hell, I should have just submitted this to Geekosystem, right?


(edited by CRZ on 16.7.10 0400)

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Zeruel
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Since: 2.1.02
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#2 Posted on | Instant Rating: 4.35
I am not boned up on domain name issues either so I am honestly asking this as you have done some research on this. What about 15 U.S.C. § 1125(d)(1)(B) U.S. Trademark Act


    In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to--

    (I) the trademark or other intellectual property rights of the person, if any, in the domain name; (II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person; ...


It could be selective memory, but I can not think of a famous person not getting their domain from someone who does not have a name similar to theirs.

Granted, it was in Canada, but Kevin Spacey was able to get kevinspacey.com from a squatter. As you said Carlson isn't misleading people that this was Olbermann's site, so he does have that on his side.

http://www.adrforum.com/domains/decisions/114437.htm



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Since: 24.3.02
From: Oshkosh, WI

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#3 Posted on | Instant Rating: 5.67
I remember Dustin Diamond trying to (and failing) to recover dustindiamond.com from the ytmnd guy.
http://www.dustindiamond.com/case/decision.html

Sting also failed to get sting.com from someone because they decided the word sting was too common.
Leroy
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Since: 7.2.02
From: Huntington, NY

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#4 Posted on | Instant Rating: 6.18
A slight, only some-what relevant follow up to this - shortly after I saw the Tucker Carlson acquisition come through the Twitter feeds, Salon.com announced that they had acquired tuckercarlson.net.

Legal standings aside, I think everyone involved in this domain name war is starting to look a bit petty.

(edited by Leroy on 16.7.10 0755)


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CRZ
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Since: 9.12.01
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#5 Posted on | Instant Rating: 8.23
    Originally posted by Zeruel
    I am not boned up on domain name issues either so I am honestly asking this as you have done some research on this. What about 15 U.S.C. § 1125(d)(1)(B) U.S. Trademark Act


      In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to--

      (I) the trademark or other intellectual property rights of the person, if any, in the domain name; (II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person; ...

If bad faith were the ONLY criterion, you could make the case. Bad faith is only one of three criteria, though. If I, as the domain holder, prove beyond a doubt "rights or legitimate interests in respect of the domain name," I can totally get away with bad faith.

    It could be selective memory, but I can not think of a famous person not getting their domain from someone who does not have a name similar to theirs.
I think you'll find in every case that it involved a cybersquatter who had one goal: extort money from the celebrity to buy back the domain name. A lot of Respondents in these cases - and you can look 'em all up over at WIPO (wipo.int) - were folks who thought they were going to register hundreds of domain names and get rich blackmailing folks into getting them back. This is precisely what ICANN set up the UDRP to prevent/fight. And oh, by the way, this is NOT what Tucker Carlson/Daily Caller is doing.

Keith probably would have had a case against whoever had the domain name prior to Carlson - if the pages at the Internet Archive are typical (a random sampling revealed "parked" and "under construction" pages), the guy/entity behind THOSE pages looks more your classic cybersquatter. Of course, Olbermann wasn't made to care about it then, was he.



Zeruel
Thirty Millionth Hit
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Since: 2.1.02
From: The Silver Spring in the Land of Mary.

Since last post: 3 days
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#6 Posted on | Instant Rating: 4.35
Ok, I think I'm wrapping my head around it now.

Like other people in that Mediate thread, I just assumed it was a cut and dry process, (Tucker isn't Keith, therefore he has no right to the domain that is the name that Keith is known by the American public) but as you have shown, it isn't so black and white. Thanks!



-- 2006 Time magazine Person of the Year --

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StingArmy
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Since: 3.5.03
From: Georgia bred, you can tell by my Hawk jersey

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#7 Posted on | Instant Rating: 6.35
This sort of thing used to be my forte but I haven't paid much attention in a few years, so I may be a bit rusty. That said, let me give this a shot...

CRZ, I think you have broken down all the applicable regulations pretty well, but I think you've either glossed over or misinterpreted one key part that changes the outcome of the analysis. I don't think you've properly analyzed what constitutes a "bona fide offering of goods or services."

I was too lazy to try to figure out of there's any legislative history (or something similar available) for UDRP stuff, but I found a handy discussion guide on the Harvard Law School web site that covers the UDRP (harvard.edu). Under Section 4.2.1.2 ("Establishing Bona Fide Offering of Goods or Services") you'll find Subsections 4.2.1.2.1 and 4.2.1.2.2:

    Subsection 4.2.1.2.1 – Bona Fide Offering of Goods or Services Found

    A bona fide offering may be found where the domain name describes goods for which the Respondent is a reseller or distributor, where the Respondent is a licensee of Complainant, where the domain name corresponds to a trademark or service mark that the Respondent uses in parallel with the Complainant’s use of its mark, or where Complainant acquiesced in the use of the domain.


    Subsection 4.2.1.2.2 – No Bona Fide Offering of Goods or Services Found

    Use of a domain name that is identical or confusingly similar to a trademark or service mark that applies to goods sold by a Respondent is not a bona fide use if the domain name serves as “bait” to attract customers to the Respondent’s site, rather than merely as a descriptor of the Respondent’s products. A Panel’s determination of whether a domain name is used in connection with a bona fide offering of goods or services will depend on all the circumstances.

TC is not a reseller, distributor, or licensee of anything KO related. Outside of the domain name in dispute, TC does not use the mark KEITH OLBERMANN at all so it cannot be said that he uses it in parallel with KO. And obviously KO has not acquiesced to TC's use of the mark. So if you are judging this case by the criteria in Subsection 4.2.1.2.1, it seems like TC doesn't have a leg to stand on.

This situation sounds a lot like the baiting situation described in Subsection 4.2.1.2.2. That subsection mentions the Pitney Bowes domain name dispute that I remember reading about awhile back (full text of that decision here). Although the complainant in the Pitney Bowes case had a stronger argument because it was obvious the other party was trying to typosquat and/or profit from consumer confusion (pitneybowe.com versus pitneybowes.com), I think that case is still applicable here because TC and KO are competitors, and TC is using KO's mark to attract people looking for KO's site.

In my opinion, TC's only hope for keeping the domain name is if he plans to use the site exclusively for critiquing KO. There's a famous case where a disgruntled former patient registered the domain name bosleymedical.com and used it to collect and display complaints from other unhappy patients of Bosley Medical. That domain name use was upheld as a legitimate fair use. If TC used keitholbermann.com for critiques, that might get him a fair use exception. Not exactly the same as a disgruntled former customer, though.

- StingArmy
CRZ
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Since: 9.12.01
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#8 Posted on | Instant Rating: 8.23
There HAS been a noticeable amount of Keith Olbermann news on the site over the past 48 hours, so maybe he's trying to bolster his content in advance of any potential challenge to be safe - but I'm pretty sure they've had a "Countdown recapper" making posts for months. (Getting paid to recap a TV show - now THAT'S a good gig.) So I'm pretty sure they've offered some KO-related ... SOMETHING prior to acquisition of the domain name. So I would argue that "TC is not a reseller, distributor, or licensee of anything KO related" is not an entirely true statement, nor is "TC does not use the mark KEITH OLBERMANN at all" as a Google search on "keith olbermann" site:dailycaller.com (google.com) returns "approximately 4,600 results," a whopping majority of which are dated prior to the domain name acquisition.

(DISCLAIMER: I am willing to accept that I MAY also be arguing out of my ass or arguing for the sake of arguing.)



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