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Marc J. Randazza Responds to Glen Beck WIPO

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Marc J. Randazza Responds to Glen Beck WIPO Powered By Docstoc
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                                                          MARC J. RANDAZZA, P.A.
                     FIRST AMENDMENT ! TRADEMARK ! COPYRIGHT ! DOMAIN NAME LAW ! INTERNET LAW

MARC J. RANDAZZA                                                 Email: marc@MJRPA.com        2 S Biscayne Boulevard, Suite 2600
Licensed to practice in FL, MA,                                                                      Miami, Florida 33131
in all federal courts in MA and FL,                           PLEASE REPLY VIA EMAIL OR FAX           Tel: 305.479.2491
before the 1st, 9th, and 11th Circuit Courts of Appeal,                                               Fax: 305.437.7662
before the Court of Appeals for the Federal Circuit,
and before the United States Supreme Court
                                                                                                       P.O. Box 5516
                                                               SENT VIA EMAIL                  Gloucester, Massachusetts 01930
                                                               SEPTEMBER 29, 2009                    Tel: 978.865.4101




Matthew A. Kaplan, Esq.
mkaplan@cdas.com
Fax: 212-974-8474


               Re: Proposed Stipulation in WIPO Case No. D2009-1182

Dear Mr. Kaplan,

As you may be aware, from reading our Response in this case, there is a split of authority in the
WIPO decisions as to how criticism sites should be examined. See “WIPO Overview of WIPO
Panel Views on Selected UDRP Questions,” at Paragraph 2.4.

View 1 states: “The right to criticize does not extend to registering a domain name that is
identical or confusingly similar to the owner’s registered trademark or conveys an association
with the mark.”

View 2 states: “Irrespective of whether the domain name as such connotes criticism, the
respondent has a legitimate interest in using the trademark as part of the domain name of a
criticism site if the use is fair and non-commercial.”

Naturally, View 2 is the prevailing view of American panelists and panels that apply American
law to UDRP proceedings. View 1 seems to be more popular with international panelists and
panels that apply European law.

Unfortunately, given that UDRP decisions regularly incorporate international legal principles,
this case could be assigned to a foreign panelist or to an American panelist who applies
transnational principles. I personally would find it distressing if the panel were to make a
decision that completely disregards the U.S. Constitution in favor of a foreign perspective that
adopts View 1.

To be candid, we found the fact that Mr. Beck filed this action at all to be most puzzling.
Although, it was obvious why he did not file in a U.S. court given the law surrounding


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nominative fair use of trademarks as fully explained in our Brief. Naturally, a defamation claim
as alluded to in Mr. Beck’s complaint would be humiliatingly doomed as well in a U.S. court.
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324#82643:26D!A:=632!26=#!68C348643:2!762#D)!!On March 30, 2009, he said on his show:

                Let me tell you something. When you can't win with the people, you
                bump it up to the courts. When you can't win with the courts, you
                bump it up to the international level.

Of course, we levy no critique at Mr. Beck for seeking to vindicate his perceived rights in this
forum. We do not share his opinion as articulated on March 30, and we respect his creativity in
seeking an alternate avenue where his claims might have a chance of success.1 Unfortunately,
despite the general wisdom among UDRP panelists, we find that occasionally they render
decisions that make First Amendment champions cringe.

We are certain that despite our disagreement with Mr. Beck’s legal position, that all parties
involved hold equal reverence for the First Amendment. Therefore, I have prepared a proposed
stipulation that will ensure that no matter which panelist is assigned to this case, the First
Amendment will illuminate these proceedings like rays of light from the Torch of Liberty.

I hate to presume anything about anyone, but I presume that Mr. Beck will agree to this
stipulation. It would be an interesting day indeed if Mr. Beck preferred to risk that a panelist
would apply French law2 to a case between two Americans over a matter of public discourse.

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I recall that Beck publicly called Harold Koh, the Dean of Yale Law School, a “threat to
American democracy” for his views on transnational law. Beck said of Koh:

               he wants to subordinate the American Constitution to foreign and
               international rules. We see that in his attack on First Amendment
               free speech principles, which he finds opprobrious.

Similarly, Mr. Beck said it best when he warned of the dangers of allowing international legal
principles to trump our cherished constitutional rights:

               Once we sign our rights over to international law, the Constitution
               is officially dead.

I am certain that neither party wishes to see First Amendment rights subordinated to international
trademark principles, thus unwittingly proving Mr. Beck’s point. Lest this case become an
example of international law causing damage to the constitutional rights that both of our clients
hold dear, I respectfully request that your client agree to stipulate to the application of American
constitutional law to this case.

I have attached a proposed stipulation for your review.

                                              Sincerely,




                                              Marc John Randazza




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                                          Before the:

                   WORLD INTELLECTUAL PROPERTY ORGANIZATION
                       ARBITRATION AND MEDIATION CENTER



Mercury Radio Arts, Inc.
And Glenn Beck
COMPLAINANT                           Disputed Domain Name:
                                      Glennbeckrapedandmurderedayounggirlin1990.com
-v-
                                      WIPO Case No. D2009-1182
IsaacEiland-Hall
PanamaCity PC
RESPONDENT



                                      STIPULATION

WHEREAS, the parties to this dispute are all U.S. Citizens

WHEREAS, the parties to this dispute desire to ensure that U.S. law and U.S. Constitutional
principles are given controlling weight in the above-styled proceeding,

The Parties hereby stipulate to the following measures in this action

1.     The Parties hereby stipulate that the U.S. Constitution, including (and especially) the
First Amendment thereto should apply to these proceedings and should govern the Panel’s
decision in this case.

2.      The Parties hereby stipulate that the Panel shall not enter a decision in this case that
would be contrary to the protections afforded to American citizens under the First Amendment,
regardless of any international principles previously adopted by other UDRP panels or other
international bodies.




____________________________________               ____________________________________
Matthew A. Kaplan                                  Marc J. Randazza
Attorney for Complainant                           Attorney for Respondent


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