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This 39 message thread spans 2 pages: 39 ( [1] 2 > >     
Handling a Domain Name Dispute Without a Lawyer
How to best defend one's rights in domian name arbitration without a lawyer?
tabish




msg:3560857
 1:43 pm on Jan 29, 2008 (gmt 0)

Hi all,

I have a domain name which is "NO Way" similer to a big compnay, but they have big lawyers so they filed the case to get my domain. they have sent the copy of case to my registrar and my registrar has locked the domain and they are saying that untill this case is resolved, my domain will be locked. My registrar also accepts that my domain is no where related to them, but they are helpless saying that "it wil be locked untill both parties resolve it with mutual understanding.

I dont understand how this mutual understanding comes when someone already filed a case. And why there should be any mutual understanding if I am not violating any rule?

Can anyone help me here?

Regards
Tabish

 

Webwork




msg:3560945
 3:07 pm on Jan 29, 2008 (gmt 0)

Where was the case filed? WIPO? National Arb Forum? In a court somewhere?

Don't post the domain or the company name. Just state the venue, i.e., the place "of filing".

Also, have you been "served" with legal papers? How?

Did the papers say how many days you have to respond?

We're not going to specifically advise you but, as a "one off", it might be interesting to learn a bit more about this.

You really should not be openly discussing your personal legal issues where anyone can see and record them, so you've been warned. No specifics, in any event, or the thread will be removed. Okay?

tabish




msg:3560985
 3:34 pm on Jan 29, 2008 (gmt 0)

thank you for the reply..

case is filed in National Arb Forum

now i have no idea how should i proceed.. they want me o pay fees.. why should i pay fees? what if i am not able to hire lawyer for myself. then ICCNA will give domain to them?

Regards

Webwork




msg:3561022
 4:11 pm on Jan 29, 2008 (gmt 0)

Okay, folks, we're going to run with this one.

Tabish, you first order of business is "timeliness": There are timelines or deadlines. You need to visit the National Arbitration website and READ their procedural information.

IF you don't file a reply "in time" - by whatever deadline they impose - you may lose your rights.

IF you are up against a deadline you MAY be able to request and receive an extension. Typically there is a formal procedure. Don't assume anything and get everything in writing.

So, the initial question is one of timing. Are you out of time? How close to the deadline for filing are you?

HAS ANYONE defended a domain dispute "pro se", i.e., without legal assistance? Tell us about your experience.

[edited by: Webwork at 7:34 pm (utc) on Jan. 29, 2008]

Laker




msg:3561023
 4:11 pm on Jan 29, 2008 (gmt 0)

they want me o pay fees.. why should i pay fees?

You only need to pay a fee if you want the complaint heard by a three-member panel, instead of a one-member panel. If the complainant has already selected a three-member panel there is no fee to you for this.

Information on fees can be found here [domains.adrforum.com].

Fees
Responding to a Complaint does not cost you anything, unless, in your response, you request additional services, such as electing to have a three-member panel decide your dispute instead of a one-member panel and the Complainant has not already chosen to do so. Our fees are detailed in our Supplemental Rule sets.

Did you receive a copy of the complaint yet?

If so, it will state the specific reasons why the complainant believes they are entitled to the domain name.

There are very specific elements of the complaint that must be true. If even one of them, for example "registered in bad faith" can be shown by you to be untrue, than you will [usually] prevail.

The process may look intimidating to you -- however there is a lot of information on the NAF website that can help you, and you can read links to other decisions that may give you information that you can tailor to include in your response. You *can* do it! ;-)

You may want to look around to see what attorneys experienced in domain name law cost. They will be glad to discuss costs with you upfront. Depending upon the circumstances (the value of the domain name to you, and your financial resources) you may want to retain an attorney to help with this.

edit: typo /edit

[edited by: Laker at 4:21 pm (utc) on Jan. 29, 2008]

Webwork




msg:3561030
 4:18 pm on Jan 29, 2008 (gmt 0)

Probably the most important step you can take, after assuring that you comply with the procedural rules, will be to read past published opinions from NAF and WIPO. You will need to understand how past arbitrators interpreted facts and applied the law. You can begin to gain this insight be reading past opinions.

walkman




msg:3561428
 10:48 pm on Jan 29, 2008 (gmt 0)

you need to attack all three (by reading previous rulings you'll see what they look for) and only need to prove ONE to keep your name. With the cases I have read so far, they seem very fair and cannot be fooled by big corps.

Paragraph 4(a) of the Policy provides that, to justify transfer of a domain name, a complainant must prove each of the following:

(1) that the domain name registered by the respondent is identical or

confusingly similar to a trademark or service mark in which the

complainant has rights;

(2) that the respondent has no legitimate interests in respect of the

domain name; and

(3) the domain name has been registered and used in bad faith.

[domains.adrforum.com...]

davezan




msg:3561558
 1:44 am on Jan 30, 2008 (gmt 0)

I dont understand how this mutual understanding comes when someone already filed a case.

Ever hear of the word "settlement"? Search around and you'll find many cases
where parties reached a "mutual understanding", then subsequently dropping
their suit before it was decided by a judge or so.

While you believe you're not violating a rule, obviously the other party figures
you are. When two parties can't mutually understand, that's where third party
dispute resolution services can come in if one chooses to force the issue.

Unless you're willing to go through the numerous decisions and file a response
in 20 days from the date of the complaint (I think), then you might as well go
look for any lawyer versed in these who's willing to work out something with
you. Depending where you are, there might some kind of "law clinic" or so.

I've read UDRPs responded to by registrants without lawyers. Some are won,
others aren't.

One good way to lose, though, is not to respond to a UDRP.

David

stajer




msg:3561561
 1:51 am on Jan 30, 2008 (gmt 0)

I don't understand why the registrar would be preventing you from using the name before the outcome of the UDRP process is complete. I have not heard of that - can you provide more information? Are they just preventing you from moving the domain or have they actually turned off your website?

davezan




msg:3561639
 3:07 am on Jan 30, 2008 (gmt 0)

I don't understand why the registrar would be preventing you from using the name before the outcome of the UDRP process is complete.

Typically registrars lock up domain names upon receipt of either a court order
or a UDRP notice (and a real one at that) to prevent any possible monkeying
around with them intending to avoid liability. People generally don't know the
devil in the details, especially when they don't read their agreements. (hint)

While no one's required or forced to read them, ignorance hasn't typically been
known to excuse or shield anyone from problems. Then again, even if you did,
that doesn't stop others from disputing your rights once in a while.

David

tabish




msg:3561745
 7:13 am on Jan 30, 2008 (gmt 0)

Thank you for all the replies.. I am reading things here and trying to proceed as you guys are suggesting. I written mail to adrforum and i got this reply:

[paraphrased: This case has not begun, so there cannot be a Response at this time.]

I think i need to wait to submit my responce.

But My domain is locked by the registrar has written me:

[paraphrased: There is a registrar lock on this domain name and it will remain in place until the Panel makes a decision. The domain name will continue to function, but it cannot be transferred until this administrative procedure is finished.]

So.. i am waiting now.. am i going right?

Regards
Tabish

[edited by: jatar_k at 1:08 pm (utc) on Jan. 30, 2008]
[edit reason] no email quotes - see TOS #9 [/edit]

Laker




msg:3562319
 9:04 pm on Jan 30, 2008 (gmt 0)

I written mail to adrforum and i got this reply:

[paraphrased: This case has not begun, so there cannot be a Response at this time.]

I think i need to wait to submit my responce.

<snip>

So.. i am waiting now.. am i going right?

tabish,

I can't tell from your post what you wrote -- and if the reply addressed the email you sent. [Don't post it here ;-) ]

1. Did you submit your Response to the NAF?
Or was your email to the NAF "just a question" about something, and not the official submission of your Response?

2. If so, did you submit your Response to the NAF by BOTH email and did you also submit three copies to the NAF by fax or postal mail?

So.. i am waiting now.. am i going right?

You must submit your Response such that it is received within twenty (20) days after the commencement of the administrative proceeding. This date is shown on the Complaint you received.

You don't want to wait ...

jtara




msg:3562484
 1:50 am on Jan 31, 2008 (gmt 0)

I don't understand why the registrar would be preventing you from using the name before the outcome of the UDRP process is complete.

They don't prevent you from *using* the domain - just transferring it.

You can see how somebody could try to work-around the procedure by repeatedly transferring the domain to another registrar and/or registrant.

Whitey




msg:3562713
 11:19 am on Jan 31, 2008 (gmt 0)

There are plenty of issues around intellectual property surrounding domain names which are far too and complex to go into here.

Such things as "multi national trading identity" , "patented product" related to domains and the list goes on and on.

But the subject can get costly to defend if the lawyers put a case to you. If you loose , you may have costs awarded against you, and if it involves lawyers you can be sure they would like to keep the bills high for their clients through recovery from you.

Although I have sympathy with you, your first step is to say :

"What's this site worth to me"?

Is it worth keeping or transferring it's content in some way to another domain that i can own?

Effort , value and risk to you is what you need to consider if your going to defend this.

tabish




msg:3562717
 11:24 am on Jan 31, 2008 (gmt 0)

I sent an email to adrforum regarding with my justification and i got a reply thet my case is not yet started and they wil notify me when to submit the responce.

I am helpless as i dont know what to do in this regard.

Regards

vincevincevince




msg:3562725
 11:43 am on Jan 31, 2008 (gmt 0)

Wait for their notification. Have your response ready in advance. If you aren't going to use a lawyer, make sure you get as many people how are knowledgeable about this to review it constructively beforehand as is possible.

tabish




msg:3563507
 4:39 am on Feb 1, 2008 (gmt 0)

Ok.. I got the notification now.

<Edit>Since I am not good in writing what should I do to respond?</Edit>

[edited by: Webwork at 3:25 pm (utc) on Feb. 1, 2008]
[edit reason] Per Charter & TOS: We offer to specific person & issue legal advice [/edit]

8kobe




msg:3563854
 2:12 pm on Feb 1, 2008 (gmt 0)

Although you might not like to hear it my suggestion is to either
1)Hire a lawyer if your site is worth saving
2)Kiss it goodbye and purchase another domain if it isn't.

If your site doesn't make you enough to hire a lawyer, then is it really truly worth fighting for? I am sure you will be able to get your content and re-brand the site under a new domain. If you make the money, protect your investment by hiring a lawyer.

tabish




msg:3563938
 3:23 pm on Feb 1, 2008 (gmt 0)

[8kobe]

I know.. and if i give you the example of my domain, you will know that too, it is completely absurd claim.. they just want to let me down because my site is comming in search engines on the top and along with their site.

The domain has no relaion with their domain.. like just for an example: Example dot com files case on you because your domain is like exampleonlinedirectory dot com they will claim that you use the word "example" in the domain. will you give your domain to them?

I have faith on ICCNA and i am trying my best to defend myself alone, lets see.

Regards

[edited by: Webwork at 3:40 pm (utc) on Feb. 1, 2008]
[edit reason] We use "Example.com" for our domain examples [/edit]

xtom




msg:3563953
 3:33 pm on Feb 1, 2008 (gmt 0)

If the domain name contains their trademark, I think they might have a good claim on it. I'm no expert though. So for example their site is trademark.com and another site trademark-directory.com or something, they would have claim on it no?

Webwork




msg:3563961
 3:43 pm on Feb 1, 2008 (gmt 0)

Folks, let's keep the focus on "how can an individual handle a domain arbitration without a lawyer".

Other types of comments, that drag the dialogue away from "how to do this", will be edited or removed.

[edited by: Webwork at 4:25 pm (utc) on Feb. 1, 2008]

jtara




msg:3564205
 7:24 pm on Feb 1, 2008 (gmt 0)

First thing: pay attention to the dates! Do not miss the response date.

Also, make sure you have been given proper notice. Be absolutely clear on the timing set out in the published procedure, and that it has been followed.

(When does the clock start? When the complaint was mailed by them? Postmarked? Received by you? Was it a month in the mail? Etc.)

If not, I'd think that's the first thing to file some sort of protest over - but while continuing to work diligently to meet the date given, even if it is incorrect.

Demaestro




msg:3564241
 8:11 pm on Feb 1, 2008 (gmt 0)

You registrar has NO LEGAL RIGHT to your domain so them locking it in some sort of attempt to become an arbiter is really sad.

I would call around to some other registrars and see who will let you use what is yours until someone proves that it isn't yours. Then move your domaiin to that company... it is sad to see that a company that you hired and you are the customer of is taking the side of someone else, what is worse they do it while accknowlaging the fact that you are in no way realted to them.

The burden of proof is on them because you are the one in possession of the domain now.

You don't have to prove your right to the domain... they have to prove their right to it is greater then yours.

Demaestro




msg:3564245
 8:14 pm on Feb 1, 2008 (gmt 0)

^^^

Sorry I mis-read.. I thought they turned it off

missed this completely....


They don't prevent you from *using* the domain - just transferring it.

Sorry for remaining off topic.... but it makes me sad that most are willing to decide if it isn't worth it to just let the domain go.... if we all keep doing this 30% of the companies will own 100% of the domains and no little guy will ever be able to operate anything without it "resembling" or "being found to be similar" to a major site.

It is bullying and the laws seem to favor the guy with the $$

[edited by: Demaestro at 8:22 pm (utc) on Feb. 1, 2008]

davezan




msg:3564547
 3:13 am on Feb 2, 2008 (gmt 0)

You registrar has NO LEGAL RIGHT to your domain so them locking it in some sort of attempt to become an arbiter is really sad.

If a registrar doesn't lock the domain name upon receipt of a UDRP notice as
agreed upon with ICANN, they risk losing their accreditation. They don't want
to get involved with civil disputes as much as anyone around here.

Read your agreement while you're at it. Specifically for UDRP.

David

Hunter




msg:3564661
 8:07 am on Feb 2, 2008 (gmt 0)

Take a day or two to read past decisions and cut and paste from each successfully defended case that fits your situation.
You either have the time to do it yourself or the $ to pay a lawyer...no other options if you want to keep your domain and defend your rights.

vincevincevince




msg:3564670
 8:58 am on Feb 2, 2008 (gmt 0)

As walkman correctly posted here, the only way they can win is by demonstrating that:
(1) that the domain name registered by the respondent is identical or

confusingly similar to a trademark or service mark in which the

complainant has rights;

(2) that the respondent has no legitimate interests in respect of the

domain name; and

(3) the domain name has been registered and used in bad faith.

Identify in their submission document their reasons for 1, 2 and 3. Be very clear about that.

Do you research now. Find any cases in which a reason given matched a reason they gave. Identify what the rebuttal was in that case, and then check what the opinion was of that rebuttal. If the rebuttal applies to you and it was accepted last time then use it yourself.

Next, write down a few good reasons why what they said in each case was incorrect. Consider carefully if these are in line with what you've read of past cases. Look for past cases in which your own reasons match a rebuttal given, and check the way in which it was received.

Ask whether it is acceptable to supply references to past cases. If it is, then wherever you have used a rebuttal which was favored in a past case then footnote it to the case number.

Before sending in your response, delete all personal opinion about the other company, accusation, emotional text and similar. You're sending something to be read by someone accustomed to reasoned legal argument and so you'll need to be as clear and concise as you can to ensure that any failings your presentation might have are not able to obscure your rebuttals.

Finally, check every single word, and ensure that it does not or could not imply bad faith registration.

xtom




msg:3564763
 3:12 pm on Feb 2, 2008 (gmt 0)

Do they have to satisfy all three of those points to take a domain or can they take it with only the first one?

davezan




msg:3564782
 3:30 pm on Feb 2, 2008 (gmt 0)

Do they have to satisfy all three of those points to take a domain or can they take it with only the first one?

As mentioned before, the complainant must win all 3 while the respondent will
need only one. Unless the respondent opts for 1-2 additional panelists, it will
not financially cost him/her anything to reply if s/he does so without a lawyer.

That reminds me: there was one decision where the complainant filed a UDRP
for 2 domain names and got 3 panelists. They got one and lost the other, so
they practically got half their money's worth. :D

David

vincevincevince




msg:3564787
 3:34 pm on Feb 2, 2008 (gmt 0)

As mentioned before, the complainant must win all 3 while the respondent will need only one.

Whilst that is true; it is a good idea to rebut all three. The one you are most sure about might be overruled for some reason and so your effort put into rebutting the others might pay off.

This 39 message thread spans 2 pages: 39 ( [1] 2 > >
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