A panel at the World Intellectual Property Organization (“WIPO”) decided recently the domain name dispute Lacoste Alligator S.A. v. LaCoste Healing Jewelry, WIPO Case No. D2009-0700. The Complainant is Lacoste Alligator, S.A., a clothing company famous for manufacturing tennis shirts, owner of the word mark LACOSTE (USPTO No. 1947111). Respondent is LaCoste Healing Jewelry, owned by Audrey LaCoste. The disputed domain name is <lacostejewelers.com>, registered by the Respondent on September, 2007. The panel discussed the following three-prong test: Domain name is identical of confusingly similar. The panel considered Complainant’s argument that Lacoste Alligator S.A. has a small line of watches, which could be considered “jewelry” and noted that in cases of abusive registration, it is common to see that a trademark is taken and a synergistic word is attached to it to create a confusingly similar name. However, the panel declined to make any findings under this element. Respondent has no rights or legitimate interests. The panel concluded that: “Audrey LaCoste has reflected the name by which she is commonly known, and in which she would have certain rights, in a domain name related to her activities.” Domain was registered and used in bad faith. The panel found no evidence that the Respondent made “a blocking registration (and has, as would be required, engaged in a pattern of such conduct), or intended to disrupt the business of a competitor, or intended to divert the Complainant’s customers to its website.” In sum, because Complainant failed to prove that (a) the Respondent has no rights or legitimate interests in the disputed domain name and (b) the domain name was registered and used in bad faith, the paned declined to order transfer of the domain name. It is worth noting that Audrey LaCoste did not reply to this Complaint and is not required to do so. Technorati Tags: ADR, law, domain names disputes, WIPO, arbitration
Continue reading...By Peter S. Vogel A software vendor made an arbitration demand that its hospital customer failed to pay thousands of dollars for its annual computer software maintenance support, and the hospital responded that it had terminated the agreements. Sounded like a pretty simple and straight forward dispute. At the preliminary telephone hearing the parties requested two days for the hearing. Discovery ran its normal course and the software vendor claimant and hospital respondent submitted witness statements and evidence before the hearing, which also seemed pretty standard. Simplified 2 Hour Hearing However as the hearing began the parties informed me that they had agreed to a new hearing format. The parties told me that indeed they needed less than a day for the hearing with a new format – PowerPoint and one witnesses. The claimant’s lawyer presented argument using 16 PowerPoint slides which took about an hour. No cross examination, that was it for the claimant. In response the respondent’s lawyer made a brief argument and asked his client’s sole representative to give his view of the dispute in the form of a monologue. Then the claimant’s lawyer briefly cross examined the respondent’s representative, no redirect. So the respondent’s case took about an hour as well. The parties submitted post hearing briefs and an award was subsequently made. Cost Effective Creative Hearing The parties were able to simplify the hearing by breaking the mold of a standard arbitration, using PowerPoint and eliminating needless witness testimony. I have encouraged other parties to consider this format during preliminary hearings since this case, and hope more arbitration hearings will follow creative formats that make the arbitration process most cost effective. Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com.
Continue reading...Karl Bayer came across an interesting article published by the Alternative Dispute Resolution Section of the State Bar of Texas. Written by Wendy Trachte-Huber and Stephen Huber, Third Party Claims Regarding Arbitration comments on opinions by the U.S. Supreme Court, the Texas Supreme Court, and the Fifth Circuit Court of Appeals relating to the rights and duties of non-signatory parties to an arbitration agreement. Read the full article here. Technorati Tags: arbitration, ADR, law, Texas
Continue reading...In an unpublished opinion, the United States Court of Appeals for the Fifth Circuit held that section 1782 does not apply for a discovery motion for use in a private international arbitration. In El Paso Corporation v. La Comision Ejecutiva, (No. 08-20771) (5th Cir. Aug. 6, 2009), La Comision Ejecutiva Hidroelectrica Del Rio Lempa (“CEL”) is a state-owned utility company in El Salvador and Nejapa Power Company (“NPC”) is a utility company related to El Paso Corporation (“El Paso”), an energy corporation based in Houston, Texas. Currently, CEL and NPC are arbitrating a contract dispute in Geneva, Switzerland, under the arbitration rules of the United Nations Commission on International Trade Law (“UNCITRAL”), El Salvadoran substantive law, and Swiss procedural law. CEL sued to obtain discovery from El Paso, to use it in its international private arbitration proceeding with NPC, pursuant to 28 U.S.C. § 1782 (Assistance to Foreign and International Tribunals and to Litigants Before such Tribunals). The Texas District Court denied CEL’s request for discovery and held that § 1782 did not apply to discovery for use in a private international arbitration. The court also held that, even if it did have the authority under § 1782, “it would not [grant the application], out of respect for the efficient administration of the Swiss arbitration.” The court granted the Rule 60(b) motion for relief from a judgment or order, vacated its ex parte order, and quashed the outstanding discovery requests. CEL now appeals. The Fifth Circuit first considered El Paso’s argument that CEL’s appeal was moot. Because the evidentiary hearing for the arbitration has concluded and the panel has closed the evidence, El Paso argues that “there is no longer a live case or controversy.” The court noted that under UNCITRAL arbitration rules, an arbitral tribunal may reopen the hearings at any time before the award is made. So, if CEL discovered new evidence with a § 1782 application, the court reasoned, that evidence could still be considered if the tribunal reopen the evidentiary hearing. The court concluded that a live controversy still exists and proceeded to address the merits of the appeal. Next, the Fifth Circuit reviewed the granting of the Rule 60(b) motion. The court stated that “[s]uch a motion can be granted for a number of reasons, including mistake, inadvertence, surprise, or excusable neglect” and “any other reason that justifies relief. The law of this circuit permits a trial judge, in his discretion, to reopen a judgment on the basis of an error of law.” The court noted that in Republic of Kazakhstan v. Biedermann International, 168 F.3d 880 (5th Cir. 1999), the court held that “a ‘tribunal’ within the meaning of § 1782 did not include a private international arbitral tribunal, and thus § 1782 did not apply to discovery sought for use in such a tribunal.” CEL argued that Biedermann is no longer controlling in light of the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, Inc, 542 U.S. 241, 258 (2004). However, the Fifth Circuit was not persuaded by CEL’s argument. The court concluded that the issue of whether a private international arbitration tribunal qualifies as a “tribunal” under § 1782 was not before the U.S. Supreme Court in Intel. In addition, the court, citing Republic of Kazakhstan, explained that “empowering parties in international arbitrations to seek ancillary discovery through federal courts could destroy arbitration’s principal advantage as a speedy, economical, and effective means of dispute resolution if the parties succumb to fighting over burdensome discovery requests far from the place of arbitration.” Accordingly, the court denied El Paso’s motion to dismiss the appeal as moot and affirmed the district court’s grant of the Rule 60(b) motion. Technorati Tags: arbitration, ADR, law, Fifth Circuit, international arbitration, discovery
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.