[discuss] WIPO Glitches

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

Here are some work items that need repair (or in the case of the 4th,
enhancement) in the WIPO report. 

  First, there is the question of the timetable:  Currently Annex V
proposes that a defendant has only 10 days from the sending of an email to
prepare and file his entire case. This is unreasonable.  There is no
requirement of advance notice (e.g. a letter before action).  There is no
requirement of actual notice.  And ten days is rather short for an
unrepresented party to find and brief counsel much less expect a finished
reply document.

This can be fixed by setting a reasonable period.   30 days from receipt  
(not mailing) would be fair.

Less would also be fair if there were some requirement (like in the UK
court system) that P send and D actually receive a "letter before action"
ie notice that the ADR is coming and a request for settlement some number
of days before commencing the arbitration.  Indeed,the primary drafters of
the WIPO report were lawyers from systems in which "ambush" litigation is
illegal, and they may well have assumed that such a letter would always be
sent. Alas, that's not the case in every country, notably the US.

And, we might set up a two-tiered system - longer period for transnational
cases, and unrepresented parties?  Shorter for cases where both parties
are in the same country and have lawyers?

 Second, there is the issue of the extent to which protections for the
exercise of rights of free expression should be more clearly stated in the
document.  The text of the WIPO report itself does not go far enough for
my taste; it is striking, however, that the one (weak) statement which
appears in that report at paragraph 172 is absent from Annex IV.  The
issue in my view therefore is whether para 172 or something stronger
should be added to Annex IV.

There is also a third issue:  It might be useful to clarify the
circumstances in which an offer to sell a domain name is not abusive, e.g.
as part of settlement negotiations, in response to a demand letter
alleging trademark infringement, etc.  It would be useful to avoid
circumstances in which a party, especially an unrepresented party, were to
respond to a threatening letter with an offer to settle only to have this
offer used as evidence of bad faith.

Finally, I  think the utility of the entire edifice would be greatly
improved by examples, drawn from recent cases around the world, in which
one said, for example, that the Toeppen case would be covered under this
policy, but the Nash case would not.


-- 
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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