[process2-comments] RFC-1

 Name: William Blackwood Organization: VerandaGlobal.com, inc. Position: Vice President I have read many of your domain name decisions. Largely, it appears the panelists have performed proper due-diligence in arriving at their verdicts. Two ruling though, had me profoundly disturbed. The cases that caused great anxiety were: Japan Tobacco Inc. v. Yoshiki Okada, case D2000-0492, and J. Crew International, Inc. v. crew.com, case D2000-0054. Both of these cases concern generic names. Generic names cannot, by trademark standards, be solely 'owned' by one entity. With the panelists ruling is these cases though, the panelists validated that generic names will be 'owned' by just one distinct entity at the exclusion of all others. This is clearly wrong, and it sets the stage for much greater abuse of the WIPO process by those that will 'gamble' with a filing claim for only $1000.00 when these Complainants know very well the cost of obtaining a generic domain name could be several hundred thousand dollars. It is clearly obvious, Japanese Tobacco had no risk whatsoever in pursing a claim of 'jt.com' through the WIPO for only $1000.00. By the panelist's award to the Complainant (The author is well aware of the fact the Respondent in this case did not submit a Response), the panelist validated that only Japanese Tobacco had rights to this very generic domain name. Just because Japanese Tobacco was the ! first (and probably the most savvy) to file a complaint against a generic domain name holder, and is lucky enough for the Respondent not to reply, the Complainant has a WIPO-validated claim to a generic domain name, at the exclusion of everyone else? This example is an obvious open-door for large corporations to 'roll the dice', to file a claim, hope the Respondent does not reply, and then own a very expensive and WIPO-approved generic domain name. The J. Crew International, Inc. v. crew.com, case D2000-0054 is even far more disturbing. 'crew' is a generic word by anyone's standards. The quotes from the dissenting panelist in the case stated very deep problems well: "This element of the bad faith analysis also fails for two reasons. First, the name is generic and as such does not have an immediate relationship to the Complainant any more than it does to thousands of CREW teams around world or any of a number of its other meanings. (Again, see the Hasbro decision supra). Second, there is no evidence that the Respondent in any way attempted to create confusion as to the source of origin, sponsorship, or ownership of the domain name. Any confusion which may have occurred was at least, in part, due to the conduct of the Complainant whose own solicitation of the link on the web site of www.crew.com caused an implied relationship. As noted above, at the behest of Complaint's own representative, the Respondent was encouraged by an offer of a commission, to, and did, place a banner ad on the CREW.com web site to direct traffic to the Complainant's web site. In my judgment, it is highly illogical to find that by placing the banner ad, solicited ! and sanctioned by the Complainant, that directing traffic to the Complainant's business should be considered an intentional attempt to create confusion as to the source of the domain. To the contrary, it seems an admission by Complainant that there is no confusion likely". "We are not legislators, but arbitrators. The majority, in an effort to stop a practice that it seems to take upon itself to believe is an unstated purpose of the ICANN Policy, has completely over-stepped its mandate as arbitrators. The decision creates a new and unauthorized test out of whole cloth, based on assumptions of fact by arbitrators without evidence on the subject, instead of using the appropriate and carefully crafted three step test for required evidence set out by the ICANN' Policy and Rules. In my judgment, the majority's decision prohibits conduct which was not intended to be regulated by the ICANN policy. This creates a dangerous and unauthorized situation whereby the registration and use of common generic words as domains can be prevented by trademark owners wishing to own their generic trademarks in gross. I cannot and will not agree to any such decision, which is fundamentally wrong. I respectfully dissent from the majority decision of my fellow professio! nal panelists". With respect to the J. Crew International, Inc. v. crew.com, it is obvious panelists have already afforded themselves undue liberties relative to the already established guidelines. Loosening the guidelines more will only open the flood-gates to more frivolous WIPO claims. The crew.com case was truly a travesty As stated at the beginning, it appears that most of the panelists have performed due research and proper consideration prior to reaching their verdicts. The guidelines for effective arbitration must be made clearer and tighter, not looser. The proper protection against trade-names and geographical areas will still be addressed in requirement #3 of 'registration and use in bad faith'criteria. As a suggestion, raise the cost to file to at least $5,000.00 and also allow for an appeals process. Thank you for the opportunity to offer my comments. Bill