How did one panelist think a domain should be transferred when the other two say the case was brought in bad faith?
It’s fairly rare that a panelist files a dissenting opinion in a UDRP. Usually a three person panel comes to the same conclusion, although occasionally you’ll see a dissent.
But a recent decision treads even further into “rare” territory: 2 panelists thought the case was so egregious, it qualified at Reverse Domain Name Hijacking. A third panelist actually found in favor of the complainant.
The case pitted European giant easyGroup Limited against Hong Kong company Easy Group Holdings Limited, which registered the domain name EasyGroup.com in 1998. The domain was registered before easyGroup got any trademark rights in the name (it already ran EasyJet, but hadn’t yet become the conglomerate it is today). The respondent runs a business with the term “easy” in it.
Two panelists found that easyGroup didn’t prove a lack of rights or legitimate interests and failed to prove the domain was registered in bad faith. The two panelists also found RDNH on the basis that the trademark rights postdated the domain name registration.
Yet one panelist, Jane Lambert, dissented. She believes that if you renew a domain name in bad faith, then you run afoul of the policy:
Even if it was possible to represent that the registration of the Domain Name would not infringe upon or otherwise violate the rights of Complainant or its subsidiary companies in 1998 it would not be possible to make such a representation now.
I really thought we were past these sorts of interpretations of UDRP, but apparently not.
Lambert appears to be the author of the book Enforcing Intellectual Property Rights.
David Gruttadaurio says
UDRP is a joke. They should just roll the dice or throw darts at a dartboard to arrive at their decisions. God help me if I ever end up before them…on second thought, I’d probably do better with John Berryhill’s help.
Another Reply says
Jane Lambert knows nothing.
As usual lawyers citing cases that are wholly irrelevant. Buy hey she’s a lawyer, and lawyers are never wrong. Right. The case law she refers to British Telecommunications Plc and Others v. One In A Million Ltd. Was a high court case bought in the English courts (July 1998) before the UDRP Policy was introduced. (October, 1999) The judge at the time did not have a policy (purchase/registration) guidelines to follow, so had to make a decision under trademark law. The rules have since change.
Anyone interested to know. The facts of the case were. One in a Million (the defendants) were dealers in Internet domain names, specialising in registering names identical or similar to the names of well-known companies. One in a Million wrote to the various companies whose name or mark featured in particular domain names, offering them for sale. One in a Million threatened to sell the domain name bt.org to someone other than BT. BT sued for passing off and infringement of registered trade mark. Subsequently other claimants joined in the attack on the Defendant. The facts are not the same. Context is important, but lawyers believe it’s not.
Jane Lambert is wrong and knows nothing about doing her job right.
Another Reply says
Furthermore. Trademark, generally refers to a word that uniquely identifies a product or service. The fundamental concept and function of a trademark is to exclusively identify the commercial source or origin of products or services, so a trademark, properly called, indicates source or serves as a badge of origin. It is accepted, that if, this concept is tampered with then the law is broken. However the Respondent (Easy Group Limited) has not tampered with the concept. Its services does not identify or pretend to identify the commercial source or origin of any the Complainants (Easy Group Limited) products or services. Simply because they don’t sell any of Easy Group Limited products or services or similar products and services. This was an open and shut case.
Another Reply says
Correction. Respondent is (Easy Group Holdings).
Mike says
If you read her book (which is out of date anyway) you will see that she writes with a slant to acting for a Complainant and —- the Respendents they dont count. And yet she is still allowed to be a supposedly UNbiased Panelist. I doubt that very much. She also mentions RDNH in the book. Just click on linki and you can read.
Another Reply says
UDRP CORRUPTION AND BIAS
The UDRP arbitration process is out of control. It’s like the legal Wild West. UDRP Panellist are given too much scope for interpretation, which is problematic, in that, the scope of interpretation and misinterpretation can be vast.
What makes the process worst is that written evidence (which is the only evidence allowed in defence of a complaint) can be naively or worst deliberately misunderstood by UDRP Panelist wanting to hide behind their “definition of interpretation” in an effort to justify their dirty position, a position, which in reality is protecting the status quo not a position that applies the law (rules) correctly.
The other problem with the process is that the UDRP does not allow any defence against any UDRP Panelist cross-examination of evidence until after the event, which is then too late. It would seem the process allows a person to enter the “witness box” but not allowed to speak when accusations are made. In this case, the Respondent was lucky there was three to the Panel (which the Respondent had to pay $2000 for). The end to story would have been quite different if it was just Jane Lambert. The Respondent would have lost something that legally belonged to them. It can’t continue.
There is no independent body that oversees behaviour. This needs to change. UDRP Panellist (and Complainant lawyers) say and do whatever they want. Lie. Ignore evidence. Make evidence up. Don’t disclose all relevant evidence. Particularly to UDRP Panellist they can do this because the system gives them exemption from punishment and freedom from the injurious consequences of their actions. This impunity naturally encourages a culture of lazy arbitration or inherent bias arbitration or the worst kind corrupt orchestrated arbitration.
ICANN should enforce their own strict set of guidelines. Guidelines are continually ignored to favour a personal view of the rules. Without consequence to keep people in line, people do whatever they want simply because they can get away with it. If a UDRP Panellist is suspected to be “manipulating the rules” then any party involved (include ICANN and the Domain Registrar) should be allowed to sue a UDRP Panellist on grounds of professional negligence. Panellist are paid to do a professional line of work. So they should do it professionally. This will certainly help filter out some of the bias within the system and lazy adjudicating. Panellist will need to stop to think.
Some-way along the way the UDRP process, which originally started out with good intentions and was supposed to be a neutral process giving equal weight to all, has become severely corrupt.
UDRP arbitrators are playing judge and jury. It has to stop.
David Gruttadaurio says
Well said. But who will listen? More importantly, who will act?
Another Reply says
I will and I am doing.
I am a successful innovator who has fallen foul of the system. It’s transpired because I think differently, its de facto bad faith. I will not be dictated to by naive stupid inept bias UDRP arbitrators that serve a Kangaroo court that from time to time makes them feel important whilst they pose and flex their muscles. The reality of the situation is the UDRP is multimillion pound dirty arbitration industry that it’s being raped and abused by insignificant lawyers all working to private agendas
The difference with this Respondent and other Respondents is that I have the financial resource but importantly drive for change. I have no intention any time soon for excusing myself to process which is not fit for purpose or apologising for who I am and how I think to unimaginative UDRP panellists most of whom are commercial trademark lawyers who have the inability to stay neutral and/or apologising to overreaching, bully type trademark owners and their money hungry commercial lawyers. All who are hard wired to look for trouble when there is no trouble. They like to smudge black and white into “grey” which is their default to stimulate hours. It’s all about billable hours to these types of lawyers. “Rack them up because people will pay, we operate in an emotive sector.” Yeap, that’s what those lawyers say and I’m the one they say acts in bad faith. If they say I do then I must do ehh.
The problem with most UDRP arbitrator’s/lawyers they do a lot of implying which leaves no more room in their tiny little brains for thinking anything else. These types of lawyers are like robots reading from academic college scripts which don’t teach them when to keep their mouths shut, but teaches them well, how to be holier-than-thou pricks.
Harlan Sweets says
Stupid !
If what she said was true then it would be a bonanza to file trademarks and steal
I domains from rightful owners.
I call for WIPO and the NAF to never use her again or increase training on the correct procedures and rules for a UDRP before letting her back in.
Stupid, stupid, wrong decision! How could she be that wrong in such a position of power? What hole did she crawl out from under? She has no knowledge of the UDRP process and rules it seems.
She should have ruled for a RDNH.
Mike says
Let me follow on from my earlier post. I looked up Jane Lambert the Panelist and I found her website here: https://nipclaw.wordpress.com/jane-lambert-2/ Now if you click on “reported cases” (I do not know but she may mean ones she was involved with, not sure on that yet) HOWEVER you will see the case
https://www.ipo.gov.uk/o24103.pdf that involves “Easy” and they lost that application against another “Easy” trade mark. She knew therefore that Easy Group (Complainant) do NOT have a Monopoly on “Easy” .
joe says
2 RDNH vs 1 transfer in the same panel is like 2 scientists saying the ice is a solid and a third one saying it’s a liquid…
UDRP is a farce.
Once and for all, a renewal is not a registration !
ICANN is guilty for these failures.
Josh says
The UDRP is a lottery. The dispute centers want it to be a lottery. Ambiguity = money.
Robbie says
2015 and we are still playing UDRP roulette with certain agents who have different motives outside the written guidelines of trying to play into a power struggle.
This is seriously #&(%&% up
another domainer says
Reading Jane Lambert’s dissent, it almost sounded like she just wanted to be a contrarian.
Then, I went to the links Mike supplied.
It sounded like she wants to help small business clients against big business.
Then, I went to the links she supplied (which has her photo) where she was the panelist on 21 cases.
1 was canceled before she ruled, 1 she was the lone dissenting person against the respondent on a 3 panel hearing and 19 where she transferred the domain to the complainant. In the American wild west, she would be called the “hanging judge” !!!
Here is where I am confused. Today and back to 2008 she is called Jane Lambert. 2008 and older, her cases are listed with the name John Lambert. However, her opinion of the respondents did not change.
Another reply. says
Jane Lambert use to be John Lambert before becoming Jane Lambert. Jane and John are the same person. She is a practicing barrister working in London. This should not make any difference to how she thinks though. Her brain is still the same. Her thinking would have been wrong all in all cases. Like many UDRP panelist they are just not very good at playing judge.
John Berryhill says
She represented a party in 2002 in an EasyGroup case.
From the reported cases in her bio mentioned above:
——
The matter was heard on 17th of October 2002, where the applicants were represented by Mr. Roberts of Counsel, advised by Messrs. Page White & Farrer, and the Registered Proprietor by John Lambert of Counsel, advised by Messrs. L J Bray & Co.
——–
Unbelievable.
Another Reply says
Do you know whether EasyGroup and the Complainant are one of the same? I think they are you know.
Each member of the Panel has submitted a Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. If I’m right then Jane Lambert is the one acting in bad faith not EasyGroup Holdings. She deliberately breached her Declaration. Jane Lambert is a corrupt and dishonest lawyer that needs looking into
jon says
nothing surprises me anymore with these inconsistent crazy UDRP rulings from ICANN. I am sure they mean well, but they are certainly sending the wrong messages to domainer’s. One of severe inconsistency and that makes us all lose faith and have substantial doubt about the system.
I was recently hit with a dispute over HOTELROOM.CO, which I thought was a generic keyword, “hotelroom” but now I am just selling the domain ridiculiously cheap because I dont want to deal with the potential legal hassle. If you ask me the system is being gravely abused with all of these fraudent UDRP filings.