From the Decision of the Administrative Panel of the WIPO Arbitration and Mediation Center Polanski v. Uziel (Arbitrators Brian J. Winterfeld, Warwick A. Rothney and Marie-Emmanuel Haas), decided two weeks ago but posted on Westlot:
In 1977, the complainant [film director] Arrested in the United States and charged with unlawful sex with a minor The complainant pleaded guilty but fled before being sentenced. He remains wanted by the United States criminal justice system.
Since then several women have come forward to allege that the complainant sexually harassed them. The complainant denies these allegations and says he has never been tried, let alone convicted, of any of these charges.
A film directed by the complainant, Based on a true story It premiered at the Cannes Film Festival in May 2017. It was subsequently screened at three other film festivals in Switzerland, Brazil and Bulgaria in early October 2017 before a commercial release in Paris, France on October 30, 2017.
The disputed domain name was registered on October 31, 2017 As of at least November 3, 2017, this has been resolved on a website The website is titled ‘Silence is the Enemy’. It referred to the (then) recent allegations against Harvey Weinstein and then noted that ‘cinema’s famous infamous figure is back in the spotlight’. The website then explains that the complainant appeared on October 30, 2017 French cinematography As guest of honor for a month-long launch of his work.
Initially, the website then said that two named women had recently come forward to make allegations against him. Text includes hyperlinks to press reports of complaints. This text was replaced with text linked to allegations against five or six female complainants.
Then, the website set out some paragraphs with quotes from the complainant. The website then continued: ‘We cannot stand the thought of taking away another woman or girl’s innocence. Age and prison time do not cure pedophilia. Polanski has a history of extensive sexual abuse.
We want to hear your stories about Roman Polanski and other predatory men who use their positions of power and influence to sexually abuse and harass women.
This site is dedicated to all the other victims of Roman Polanski, who were afraid to tell what happened years ago—but now, can tell their story knowing it won’t go unheard and will be shared to give others around the world the courage to stay where Roman Polanski is in jail.
This unspeakable behavior towards women must be stopped. All tips, once verified, will be forwarded to law enforcement authorities and shared anonymously on this site with permission.’
Then the information submission is arranged.
After a description of the mission of the people behind the website and a further call to action, the website included a ‘donate here’ link. This link links through the respondent’s Real Women Real Stories Patreon account. Over time, 89 subscribers have donated to this account.
The webpage footer includes links to the respondent’s ‘Real Women Real Stories’ YouTube account, Facebook page and Twitter account.
The actress in the video later gave an interview, which was also posted as a video on YouTube, in which she said she wished she had never spoken out as a result of the personal and professional losses she had suffered. However, the interview makes it clear that he has not retracted his complaint. In addition, a woman who gave her first name on the respondent’s website later said on Twitter that she was repeatedly harassed by the respondent for giving a video-edited interview of her claim.
The respondent appears to describe himself variously as a high-tech entrepreneur, a hedge fund manager, an art collector, and now an executive producer, an investigative journalist, and a former modeling agent. The article about him on Wikipedia claims that his documentaries have grossed over US$50 million worldwide.
She founded the Real Women Real Stories YouTube channel in March 2016 (although the channel previously had different names).
The description of the channel says ‘The channel empowers women to raise their voices that they feel need attention’. The channel has a large amount of videos. Many, but not all, of them describe claims of a sexual abuse nature. At the time the complaint was filed, the channel had 213,000 subscribers and approximately 59 million views.
In an interview published online in ‘L’Obs’, the respondent admitted that he had posted on Twitter offering US$20,000 for a ‘tip’ strong enough to convict the complainant. The respondent also admitted that he did not have the funds to pay that amount himself but claimed, if the information was compelling enough, he would be able to get the funds. In the interview, the respondent also claimed that all the testimonials he received were unnecessary….
The panel applied the Uniform Domain Name Dispute Resolution Policy:
Article 4(a) of the Policy provides that in order to set aside the Respondent’s disputed domain name, the Complainant must demonstrate each of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; And
(ii) Respondent has no right or legitimate interest in the disputed domain name; And
(iii) The disputed domain name has been registered and is being used in bad faith.
The Panel held that element (i) was satisfied, but concluded:
[I]t A criticism or complaint or objection to a whistleblower site cannot be made solely on content that is alleged to tarnish the reputation of the trademark owner. The point of such a site, if indeed for that purpose, is to expose some (alleged) fault or wrongdoing or complaint against the trademark owner. The purpose is to expose the falsity of the reputation associated with the trademark.
It is not the panel’s role, nor is it within its power, to determine whether the criticism is correct or incorrect; The question before the panel is whether the disputed domain name is being properly used…
[A]n Attempts to cash in on the reputation associated with a trademark may disqualify reliance on fair use… [But] The present case is very different: on the face of it, the website appears to be seeking information about the complainant with the intention of publishing her alleged wrongdoing claim.
Evidence shows that for the Patreon account Real stories of real women—Account attracted some limited funds from 89 customers. The evidence does not reveal how much the respondent earned from advertising on the YouTube channel. As the Complainant points out, however, the Respondent was aggrieved that the steps taken by the Complainant with Google to block such advertisements on the Respondent’s channel had cost it advertising revenue….
The respondent stated that these funds were sought to fund the production of his films and the maintenance of his websites. On balance, the Panel considers that these practices do not preclude the Respondent from claiming fair use in this case; In short, they don’t seem like an excuse for cyberscatting. First, the content of the website and the YouTube channel for that matter seems directly related to the claimed purpose. In addition, the Real stories of real women The website has a large number of videos where women are seen voicing their genuine grievances and experiences. The panel does not consider that it can dismiss the website or YouTube channel as shams or mere excuses.
It is disturbing that the USD 20,000 payment proposal suggests ‘checkbook journalism’ and admits that the respondent does not have the money to personally pay it. They are not the claims made on the website. Moreover, it is not clear from the complainant’s ‘admission’ that the respondent made the offer without a genuine belief that the money would be available. Respondent also denied that any testimonials on his site were actually paid for and there was no evidence before the Panel contradicting this claim.
The Panel does not discount these commercial aspects of Respondent’s apparent belief that Complainant’s criticisms or allegations are genuine and, as already noted, they do not present the scene as an excuse for cyberscattering….
[Moreover, i]It is unlikely that a website leading to the disputed domain name will be mistaken for a website operated by or with the consent of the complainant.
The disputed domain name is not identical to the name of the complainant That’s not even his full name. In contrast, the complainant’s surname is preceded by the phrase ‘i met’. Although at the beginning of this century there was a habit among some ‘tech minded’ people to use ‘I Met’ [name].com’ as a sort of calling card, the meaning conveyed by such a name applies equally to those who have met the person or persons of the name. Accordingly, the risk of implicit (false) affiliation is reduced….
[O]n On balance the Panel finds that the Respondent has successfully demonstrated that its website is for the purpose of criticism or ‘whistleblowing’ and is not a pretext for cyberscattering. Accordingly, the manner of use qualifies as fair use for the purposes of the policy…
In light of the complainant’s failure to meet the second requirement under the policy, the complaint must fail. Accordingly, the Panel will give only limited consideration to the third requirement.
Under the policy’s third requirement, the complainant must establish that the disputed domain name has been registered and is being used in bad faith by the respondent. These are joint requirements; For a successful complaint both must be satisfied …. Given the conclusion reached in the section [above]It follows that the Panel finds that, on record in these proceedings, Respondent did not register the disputed domain name in bad faith….