WIPO arbitrator wins 2009 Domain Dunce Award.

Last year I handed out a couple Domain Dunce awards. But there was so much stupidity in the domain name world this year that I have about five to hand out.

The first winner of the 2009 Domain Dunce awards is WIPO arbitrator Andrew F. Christie.

I’m going to coin a new phrase: “circular reference arbitration”. It’s when a UDRP panelist refers to his own cases as precedent, as Mr. Christie likes to do.

I first became aware of Christie’s circular reference antics when reading the case for Parvi.org, a case currently involved in a lawsuit. In his decision handing the domain name over to Ville de Paris, Christie ignored thousands of cases of UDRP precedent and the rules themselves, which clearly state that a domain name must be registered and used in bad faith. Instead, Christie decided that a domain name can be registered in good faith but used in bad faith at a later date and still be handed over.

How did he do this? He cited one of his prior decisions without mentioning that they were his decisions!

In the Parvi.org decision, under the header “Reconsideration of the bad faith requirement”, arbitrator Andrew F. Christie cited previous cases decided by a “distinguished” panelist who found that domain names don’t need to be registered AND used in bad faith, as the UDRP states. Instead, this panelist decided that a domain not registered in bad faith could still violate the policy if later used in bad faith.

The panelist he was referring to was M. Scott Donahey, who referred to an even earlier decision in Telstra Corporation Limited v. Nuclear Marshmallows. Christie wrote “The issue addressed in the [Donahey decisions] is profound, and the panelist addressing them is distinguished”.

What Christie didn’t mention was that he was the panelist in the Telstra case that Donahey relied upon. In other words, Christie wrote the Telstra decision, another panelist agreed, and now Christie is using this “profound” issue as established fact. How’s that for a circular reference?

It gets better. In another poorly decided case (although the ultimate outcome is correct) for ZeroSpam.com, Christie again refers to his earlier decisions without mentioning that they were his decisions.

After determining that ZeroSpam.com was registered well before the complainant had any rights to the term, Christie again stated that this was not enough for the respondent to win the case. This time he cited Donahey’s decisions, based on Christie’s decision in Telstra, as well as his own Parvi.org case. Again, he didn’t mention his involvement with these cases!

After reviewing the reasoning in the [Donahey cases], the panel in Ville de Paris v. Jeff Walter, WIPO Case No. D2009-1278 (“Ville de Paris”) came to a similar view.

Perhaps this should read:

After reviewing the reasoning in Donahey’s cases, which were based on my reasoning in Telstra, I agreed with myself in WIPO Case No. D2009-1278 (“Ville de Paris”).

Mr. Christie has done a slick job using circular references to his own decisions without mentioning that they are his own decisions. He has also decided that, for each UDRP case he receives, he will pervert the definition of “registered and used in bad faith”.

For that, we give Andrew Christie a 2009 Domain Dunce award.

Finally, my inbox can rest.

Christmas is over. And it couldn’t have come too soon for my email inbox. It was inundated with email promotions for holiday gifts.

These emails weren’t technically spam. After all, I had ordered gifts from companies such as Harry & David last year, and I gave them permission to send emails to me with special offers in the future.

But how many emails can a company send without violating the sanctity of that opt-in? Harry & David and its sister company Wolferman’s literally sent at least one email a day in the weeks leading up to Christmas. It started around Thanksgiving and didn’t let up. (In fact, it still hasn’t let up. Apparently they have more pears to sell and are offering post-holiday discounts).

My favorite was one morning when I received an urgent email from Harry & David: Last day to order and get delivery by Christmas with free express shipping!

Then, later that afternoon: Only a couple hours left to order and get delivery by Christmas with free express shipping!

Two emails in one day is excessive. But the punchline came the next day: Extended! Today is really the last day to order with free express shipping!

Seriously?

E-commerce stores, take note. When your customers opt-in to receiving promotional emails, you need to respect what that means. Sending an email a couple times a month during most of the year is reasonable. Then perhaps weekly before the holidays. But one or two emails a day for a month is not what people signed up for.

GE loses domain name dispute. Did it fall on its own sword?

General Electric (GE) has lost a domain name dispute under UDRP for the domain GEEntertainment.com.

This is an interesting case for two reasons:

1. The complainant provided too much information to the panel, giving the keys to the panel to find in the respondent’s favor despite receiving no reply from the respondent.

2. It appears the panelist did some of his own research to supplement his findings.

GEEntertainment.com is registered to an Atlanta company that represents musicians, specifically rappers. In its complaint, GE submitted printed out pages of the web site along with the respondent company’s registration for G.E. Entertainment, LLC. Normally a respondent provides such registration showing a legitimate interest in a domain name. But in this case, the respondent didn’t reply to the accusations. So GE actually helped out the domain owner.

With regards to the panelist, he makes certain statements that indicate he did supplemental research for the case. For example, he wrote:

It is true that the Complainant currently owns a major entertainment group, but from the record in this proceeding it appears that the Complainant’s entertainment products and services are marketed under the NBC and Universal names and a variety of marks associated with particular broadcasting and cable channels, websites, and production studios. The Complainant’s most recent annual report lists 23 “brands” used in its “Media and Entertainment” business. Not one of them includes the letters “GE”.

I suppose it’s possible that GE included a copy of its annual report in its complaint. But regardless, the way the rest of the decision is written, it’s clear that this panelist went above and beyond what his peers do in the case of no response from the respondent in a UDRP.

A few domain name news stories for Wednesday.

With a holiday week, there are a lot of stories I haven’t gotten to, so let’s get caught up…

When Ron Jackson started writing DNJournal, he was smart enough to decide to focus on feature stories rather than “breaking news”. After all, it lets him work at his pace. He’d rather have people like me cover the breaking news while he focuses on features. And that’s a good thing, because he’s really good at it. Witness his latest feature, a story about Rick Latona. It’s an interesting read, and it puts into context how Latona runs his businesses…

Speaking of Rick Latona, he has launched Vino.com. He made a smart move by avoiding the typical wine e-business and opting to run a wine-of-the-month club instead. You might notice some design similarities between Vino.com and Latonas.com.

The WhyPark charity auction has contributed nearly $3,600 to a yet-unnamed charity. The bidder who bought EquityFirm.com for $775 will get to choose the charity.

iCarly teaches kids at a young age to make sure their domain names don’t expire.

This is a little old, but you’ll still get a kick out of it.

A reader just sent me a link to an iCarly episode that deals with domain names. I must admit I’ve never seen this Nickelodeon show before, but the description of this episode makes it almost worth paying the $1.99 to view the episode on Amazon UnBox:

“iWant My Website Back” – Spencer gets a new credit card after canceling his old one, causing Carly, Sam, and Freddie to lose control of the iCarly.com domain. Luckily, Mandy (who appeared in “iAm Your Biggest Fan”) returns to buy their website back for them, but she gets tricked into giving it to Nevel. Spencer disguises as an old woman to trick Nevel into signing the URL transfer document during a book signing, but is chased out by security after Nevel recognized him. Later, Nevel demands a kiss from Carly in return to claim the transfer document. Carly confronts Nevel, and Nevel signs the document. However Carly escapes with the signed document without having to kiss Nevel and succeeds in reclaiming their website.

That’s the detailed description on Wikipedia for season 2, episode 12. Man, these shenanigans rival that of the Sex.com theft.
OK, maybe not.

Hat tip: Larry Erlich, DomainRegistry.com