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UDRP and Article 92(b) of EUROPEAN COUNCIL REGULATION (EC) No 40/94

It has been over a year since I posted “The Non-Parity of the UDRP”, how little did I know then compared to now! Since that posting, the corporations and their lawyers have given me a crash course in the law and I have learned much.

There are many tricks that corporations will play on a domain name registrant in order to silence criticism of the corporation and to violate the registrants right of freedom of expression without frontiers.

The UDRP Administrative Proceedings is one such trick. Corporations say the reason that they choose Administrative Proceedings is the cost effectiveness, not so, the reason is that they can bring a complaint under the UDRP that is frivolous, groundless and legally ill-founded, whereas in most instances it would be thrown out of a court of law in a heartbeat.

In my experience, I had my domain names registered in the US and after Eastman brought a UDRP complaint against me which was supported by fabricated evidence and full of lies (aided by their lawyers Jones Day), corporation after corporation started to file complaints against me to take advantage of the non-parity of the UDRP and the biased decision in the Eastman case.

In each and every instance the complainant chose US jurisdiction in relation 3(xiii) of the UDRP Rules.

After I learned about the non-parity in the UDRP, I changed my registrar to a UK registrar and lo and behold, only 3 corporations initiated UDRP complaints against me (Abbott Laboratories via their lawyer Mark V.B. Partridge of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, and Endo Pharmaceuticals Inc and Auxilium Pharmaceuticals inc via Bruce A. McDonald, of Schnader Harrison Segal & Lewis LLP After that, peace and quiet at last, except for the court cases. Let’s talk about those. I initiated court cases in the UK against Eastman, Jones Days, Biocryst etc., anyone who frivolously and groundlessly initiated administrative proceedings against me. Jones Day, Biocryst, Endo etc, didn’t defend but instead initiated court cases in the US. All of these entities are fully aware that the UK has no reciprocal agreement with the US and so any US judgment in those cases was a waste of time as it is not enforceable in the UK.

One such case is Biocryst Pharmaceuticals, the very first administrative proceedings that was brought against me and in which WIPO found in my favour. As the administrative proceedings were concluded in my favour and a UK court case against Biocryst was pending, I did not change the domain name registrar and it remained in the US and with a free whoisguard service.

Biocryst and their lawyers were obviously full aware of those proceedings, therefore they were fully aware that I was the owner of the domain name and the website yet they chose to file a court case in the US against the whoisguard service provider/registrar stating that they did not know who the owner of the domain name was. They kept the existence of the US court case a complete secret from me and effected a transfer of my domain name in default and this was of no importance to the US court. The parties concerned in the conspiracy to defraud are party to a UK court case against them and criticism websites against them at the addresses of silverberggoldmanbikoff.com, fieldfisherandwaterhouse.com, biocrist.com, biocryst-pharmacuticals.com, etc.

In the case of Jones Day, they have also tried every trick in the book. Most of these entities do not want to defend themselves in my court cases against them and they have applied for a strike out of the court cases. Even though I am operating a parody website in criticism of the law firm Jones Day at JonesDays.com, they applied for a strike out of the court case against them and succeeded.

You might think that the actions displayed by these entities are weird, however there is a reason for their unusual behaviour. The reason is, UK and European laws such as Article 92(b) of EUROPEAN COUNCIL REGULATION (EC) No 40/94, Article 21 of the UK Trade Marks Act 1994 and the European Convention on Human Rights and Fundamental Freedoms

Unlike the USA, the European Union protects the right of freedom of expression without frontiers and does not give trade mark holders the right to over exert their trade mark rights. The EU laws, unlike the US ACPA (which seems to have overwritten the first amendment), protects a person making use of the trade mark which is not in the course of trade, and if threatened with infringement proceedings, it provides the person being threatened with a cause of action to sue the person making the threat for:

(a) a declaration that the threats are unjustifiable,
(b) an injunction against the continuance of the threats,
(c) damages in respect of any loss he has sustained by the threats;

The person making the threat includes the trade mark holder, their lawyer, and anyone else who participates in that threat.

The form that the threat comes in can be many and varied, including a cease and desist letter, initiating administrative proceedings under the UDRP (by virtue of clause 4k and 5), a letter threatening the hosting company or registrar, etc, etc.

My experience is that freedom of expression is upheld on the internet as long as:

1) The registrant is domiciled in the European Union or any other country that has made provision for a declaration of non infringement.

2) The registrar of the domain name is in the European Union or any other country that has made provision for a declaration of non infringement.

3) The servers for hosting the website are in the European Union or any other country that has made provision for a declaration of non infringement.

If any of the above are in the US or any other country that does not have provision for declaration of non-infringement, then my condolences, as freedom of expression can not credibly exist.

By Patel

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