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WIPO disgraces itself over CelineDion.com
All pretence of objectivity goes down toilet
WIPO has ruled on the case of CelineDion.com and, would you believe it, has decided that Celine's record company should be given the domain.
The difference here is that the so-called cybersquatter isn't having any of it and decided instead to expose the gross complacency of an arrogant organisation that is building a monopoly of domain name disputes. [Don't be afraid to say what you think - Ed.]
Jeff Burgar is a thorn in WIPO's side because he is willing to fight and fight by the rules. Earlier this month, he exposed WIPO to heavy criticism with a dispute over BruceSpringsteen.com. He successfully argued his case and the WIPO panel not only agreed with him but also made some damning statements about current resolution policy. He has done much the same with Hewlett Packard, Mariah Carey and a host of others.
What we need to say right here is that we don't actually support Jeff Burgar. He has registered a slew of dotcoms under famous people's names and done very little with them. This isn't a completely bona fide case where a fan has been stomped by an ugly, rich corporation. But this case - and a sister case regarding Julie Brown (some MTV airhead) - do, however, expose WIPO's flawed system and make clear that the organisation has become a law unto itself.
Before we even get into the facts of the case, the situation stinks to high heaven. The Celine Dion case and Julie Brown case both concerned Jeff and were both presided over, solely, by a WIPO panellist, Professor William Cornish.
Now, according to WIPO rules, there are two types of arbitration: normal and expedited. Normal arbitration is presided over by a panel of one or three; expedited by just one. You have to pay more for a three-person panel, so Jeff opted for the one-person panel. However, in both cases the same person was chosen to arbitrate. Jeff wrote to WIPO questioning his selection.
His concern was well-founded: Professor Cornish treated the two cases as one and put no effort or individual thought into the Celine Dion case. How can we make such a sweeping statement? Because the official Dion judgement is a cut-and-paste of the earlier Brown case. Such little effort was put in, in fact, that a number of errors made it into an official document.
Example. Brown case: "notified to the Respondent on December 27, 2000". Dion case: "notified to the Respondent on January 10December 27, 20010". Others: "issuance of a decision is: February 11, 2001; issuance of a decision is: February 211, 2001"; "dated January 26, 2001; dated 26 January 26, 2001". "So far as these cases are matters of the [sic] case being a matter of public record, i [sic] public record, I accept that it is proper for aeither [sic] party". Don't take our word for it, look at WIPO's official site here and here.
Here's another concern: timeframe. The decision in the Dion case was due 21 February. On 14 February, Burgar sent a letter to the case manager Sherry Smith asking her to explain Prof Cornish's appointment as arbitrator, and asking for a deadline extension as a form of injunction on the decision. If Cornish was to stay as the arbitrator, it asked that he could file a supplementary response, expressing concerns over Cornish's previous decisions. Receipt of the letter was given on 15 February.
The decision against Burgar was relayed to him the very next day. The official judgement actually shows a date of 13 February (whether this was just another hangover from the Brown case we can't be sure).
Without even getting into the legal arguments of the case - debatable, even with the flawed UDRP - there is more damning evidence of the subjectivity of WIPO's ruling.
Reading the judgement, Prof Cornish arrogantly disregards perfectly reasonable arguments with no justification and also builds his case on facts that aren't even true. Would you like examples?
Prof Cornish recognises that the Complainant (Burgar) asked to be able to file a supplementary reply to his response. The Prof decided this was not necessary for him to reach a decision. He recognises that Burgar drew his attention to the Springsteen case (which raised some very important points when dealing with famous people) as well as other cases that Burgar had won. The Prof dismisses them out of hand.
Burgar points to the almost identical Julie Brown case which Cornish ruled against. He points out that he is entitled to take that decision to court in a bid to overturn it. Cornish recognises this right, but fails to see why this should affect his decision on this case - something that stands in contradiction to just about every Western law system.
In the official judgement, Cornish starts his outline of Burgar's case with the derogatory comment "in a lengthy submission, much of which appears rhetorical". This is insane. Any resemblance to objectivity goes out the window as soon as those words appeared. Burgar's "lengthy" arguments are then reduced to a line a point, whereas Sony's points (Dion's record company) were given several lines each.
What else? Cornish recognises that a trademark is supported under the UDRP and therefore Burgar's claims are ancillary. He then goes on to note that no-one - not Celine nor Sony - has actually trademarked her name. But then if they were to file for a trademark, they would probably get it and so therefore Burgar has no claim.
In almost the same breath as this rhetorical nonsense, Cornish then goes on to dismiss claims that the site is a legitimate fan site. He says that at one point it had a link to Burgar's Celebrity 2000 site that makes money from advertising. Therefore he's using Celinedion.com to make money - hence, bad faith. Of course, the site actually sports "Unauthorized Celine Dion site" at the moment. Cornish doesn't know when this happened but because Burgar hasn't told him, he must be guilty.
Cornish also made several and varied references to Burgar as a kinda serial cybersquatter and believes this should count against him significantly. Again, in UK law at least, you are not allowed to mention or consider previous cases/convictions in the interests of a fair trial.
The most sickening aspect though is the expansion by Cornish of a damning piece of proof. The judgement says: "that when first approached in October 1997 about his domain name registration, Mr Burgar stated to the Complainants' legal representative that he would relinquish the registration, but not without 'negotiating'. A later letter, of June 12 2000, seeking transfer of the domain name in return for payment of Mr. Burgar's out-of-pocket expenses, went unanswered."
This has been a sordid trick in the past by big companies to justify a "bad faith" takeover of a domain. Say you own www.bigcompany.com. Big Company calls you up and says "we really want your URL, will you sell it to us". "Er, dunno." "Well, how much would you want, we're a big company and we're willing to pay." "Well, I don't know. £10,000?"
"And then he asked us for £10,000 to hand over the URL, your honour."
But in this case, Sony made no formal complaint about Burgar trying to sell the URL. In fact, Burgar denies profusely that he ever offered to sell it. This is rendered in the judgement as "that he did not indicate to the Complainant that he was willing to transfer the domain name after negotiations".
Now, we have been an open critic of WIPO for the last year, we have said from day one that it is flawed, biased and a law to itself. We have complained that it decides over important matters - the ownership of a domain name - but behaves more like a kangaroo court than a law court. But this case must be the most flagrant disregard for what is supposed to be a fair and equitable system we have seen.
WIPO, even you have outdone yourself this time. ®
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