Webwork - 1:47 pm on Apr 6, 2009 (gmt 0)

I read that, stormy, but here's the rub.

First, every single WIPO case is filed with the claimant asserting "trademark abuse". This includes the many claims that have been denied, some filed in such bad faith that the panel concluded there was an attempt at reverse domain name hijacking. So, allow me to lope off one branch of the "don't get excited" argument. Under this proposed process there will be those with weak trademark claims who will file for an expedited hearing just so they can grab a domain they couldn't otherwise get by ordinary processes.

That leaves "the process" that is being proposed. Why should I get excited? All WIPO is talking about is due process as it applies to "new gTLDs", right? The supposition that this will "only new gTLD"s.

If you know anything about the evolution of "the law" then you will quickly accept that one of the central tenets of evolved law is due process. The life force of "due process" flows from principles such as "fair notice" and "opportunity to be heard". Due process and its underlying principles tend to yield to notions of "administrative convenience" or "administrative efficiency" only after wars or a coup.

Anyone hear of a war? Anyone learn of a coup?

Yes, by this proposal war has just been declared - by WIPO - on cybersquatters.

That's not all bad. I don't have a problem with a war on cybersquatters. However, I DO have a BIG problem with executive branch (ICANN) and judicial branch (WIPO) sanctioned collateral damage, innocent and/or appropriate registrations wrongfully taken.

But collateral damage is an unavoidable consequence of war, right?

War, yes. Judicial process? No.

Another central premise of evolved legal thinking is that it is better for a dozen guilty parties to avoid the gallows than for a nation to hang one innocent man. But this clearly has the air of "hang all the cybersquatters" - guilty or innocent. Notice by email only. 10-15 calendar days to gather your facts, find and retain a lawyer, have the lawyer prepare and file your defense.

Or death.

I just don't get how a "world" agency, such as WIPO, would be so inclined to dispense with procedural safeguards. That is, unless WIPO is coordinating a war effort with WIPO.

Oh, but it's only going to apply to new gTLDs. WIPO's and ICANN's willingness to entertain dispensing with due process will only be applied prospectively. So this is only a little tsk-tsk to due process, right?

There's an infamous phrase in the legal profession, one that causes many a legal professional to shudder: "pilot program [google.com]". Pilot program, translated, means "If we (=the bureaucracy) like the way this works (if it makes our life easier, etc.) then today it's apples, tomorrow it's oranges, pineapples, and grapes."

[edited by: Webwork at 1:57 pm (utc) on April 6, 2009]