Re: Fwd: Re: [ga] Some other ideas about the questions... [ga-udrp] UDRP Questionnaire

["William S. Lovell" <wsl@cerebalaw.com>]

This from William X. Walsh?  Who in a recent post answering a
"clueless newbie" (who predictably has not been seen again),
included the immortal lines (and I paraphrase) "you are just
showing your ignorance?"

Give me a break.

Bill Lovell

"William X. Walsh" wrote:

> First line, it is getting out of hand.
>
> This is a forwarded message
> From: William S. Lovell <wsl@cerebalaw.com>
> To: ga-udrp <ga-udrp@dnso.org>
> Date: Saturday, June 30, 2001, 3:26:39 PM
> Subject: [ga] Some other ideas about the questions... [ga-udrp] UDRP  Questionnaire
>
> ===8<==============Original message text===============
> [Why isn't this in ga-udrp? Because WXW doesn't want to go there?
> Does he make these rules?]
>
> "Cade,Marilyn S - LGA" wrote:
>
> > Bill, you do feel strongly about that subject!  :-)
>
> Hi, Marilyn!
>
> It's not so much that I "feel strongly" (although that, too!), but that it's
> a legal opinion that I reached, and argued, in a Federal Court case.
>
> > I know there are a lot of opinions on this topic, and I don't want to start
> > a range war. I'm not commenting on whether a questionnaire is a good idea or
> > not, but I agree that real verifiable facts are GOOD!
>
> I've no objection myself to any questionnaire that people want to try out.
> If it serves me no purpose, I'll ignore it; should it come up with information
> I can use in what I'm doing (with or without comment on the structure of
> the questionnaire -- I concur with some of those (Leah, I believe was one)
> who had found major holes in the objectivity of the WHOIS one), I'll use it.
>
> > I'm a little
> > concerned that all questionnaires that might be distributed (I said this
> > about the WHOIS questionnaire as well) should be considered probably
> > qualitative input.  But that doesn't mean it isn't useful as background,
> > etc.
>
> I would indeed call every questionnaire seen so far as being qualitative.
>
> > I'll try to add a question or perhaps some other ideas/clarifications to
> > Milton's list.  They are in caps inserted into a copy of Milton's initial
> > list with a comment in [] if needed.  I understand that Milton may not
> > accept my friendly amendments :-) and could offer them as stand alone
> > questions, should you prefer, Milton.
>
> Go for it.
>
> >
> > A well qualified statistically valid study will [INSERT: "would" (sic)] take
>
> > time and money, and
> > expertise which should be neutral and verifiable. BUT, getting some ideas
> > out via initial methods like this can be a great start to improving what is
> > known, what is believed, what is understood, and what still mystical.
>
> Concur wholeheartedly.  (Mostly mystical, methinks!)
>
> (Down below I'm answering some of the questions, rather than posing or
> editing questions, just to show how the questions as written might be
> interpreted.)
>
> >
> > Marilyn
> >
> > > >001.    To what extent are panel decisions consistent with applicable
> > lawS? [I thought it better to note that there are multiple laws, and of
> > course, jurisdictional issues; I am not a lawyer, so Milton in particular
> > should comment on whether the "s" is needed.]
>
> I say the "s" is needed as  law(s).
>
> >
> > > >002.    Are decisions REGARDING CASES WITH SIMILAR CHARACTERISTICS/FACTS
> > consistent across panelists and dispute resolution
> > > >service providers,
>
> Evidently not, with the amount of forum shopping going on.
>
> > and if not, what can be done about it?
>
> I'll hate myself for this, but the way that the courts enforce uniformity over,
> say,
> the regional circuit courts, is that there is an appeal to the U. S. Supreme
> Court
> which then defines standards for the lower appellate courts to follow.  Even
> that
> does not work too well -- some circuits (e.g., the 9th) make it a practice of
> weaseling their way around U. S. Supreme Court decisions -- they read the ones
> they want to read and ignore the rest.
>
> > IS INFORMATION
> > AVAILABLE IN AGGREGATE FORM FROM EACH OF THE PROVIDERS WHICH WOULD ALLOW
> > SUCH AN ANALYSIS?
>
> Is that a poll type question? Isn't it a request for information?
>
> >
> > > >003.    Is the potential for abuse of claimed common law rights so great
> > that
> > > >the policy should be limited to registered marks? [THIS IS A COMMENT:
> > BOTH THE U.S. AND THE UK, TO MY KNOWLEDGE ACCEPT COMMON LAW RIGHTS.]
>
> Here is why the "s" on "law(s)" is needed -- practice differs, such that in the
> U.S. you gain trademark
> rights by use, and (contrary to the very prevalent conception otherwise), these
> "common law" rights
> are fully as good and fully as enforceable as those that also have a
> registration. The registration itself,
> also contrary to notions long promulgated erroneously by Network Solutions and
> its successors
> (including ICANN), imparts no substantive rights whatever, but only procedural
> advantages.  By
> contrast, in Europe you can get a trademark registration, and have rights
> therefrom, even though
> the mark has never been used.  If there were to be any UDRP at all (which I
> oppose), it should be
> effective with respect to the law of the country in which the mark is claimed.
> A case "tried" (quite
> a laughable use of the term, really) in Europe with regard to a U.S. common law
> right should
> recognize that common law right.  (And here, of course, is one of the major
> problems: I would
> wager that most of those on these panels are techie Internet gurus who don't
> know beans about
> any trademark law anywhere.)
>
> >
> > > >004.    Should generic names, geographical names, initials and numbers be
> > > >protected from claims by any trademark or name rights' owner, regardless
> > of
> > > >the owner's fame? AND IF SO, IS THE CONSISTENT WITH APPLICABLE LAWS?
>
> Follow the law of the jurisdiction wherein claimed.
>
> >
> > > >005.    Is the high respondent default rate due to a lack of real and
> > timely
> > > >notice of complaints and/or a lack of time to respond?
>
> Good question
>
> > IS INFORMATION
> > AVAILABLE, IN ADDITION, ABOUT HOW MANY INCIDENTS OF INCOMPLETE OR INACCURATE
> > REGISTRATION INFORMATION HAVE HINDERED NOTIFICATION?
>
> Isn't that again a request for information rather than an opinion?
>
> > > >006.    Do complainants and respondents have parity in post-UDRP access
> > to
> > > >the courts?
>
> How would most people be able to answer this?
>
> > > >007.    Should the ability to challenge a name under the UDRP expire
> > after a
> > > >single registrant has held the name for a specified period of time?
>
> Good question
>
> > > >008.     Should there be an internal review mechanism (such as an appeal
> > > >panel drawn from all the Providers) to overturn clearly erroneous
> > decisions
> > > >without resorting to courts?
>
> Separate these two, of course.
>
> > IF SO, WHAT IS THE PROCESS TO DETERMINE
> > "CLEARLY ERRONEOUS DECISIONS" ACROSS EACH OF THE PROVIDERS?
> > > >009.    Does Complainant selection of the resolution service provider
> > lead to
> > > >"forum shopping" that tends to bias decisions against Respondents?
> > > >010.    Should registrars, rather than complainants, pre-select the
> > > >Provider(s) to whom all disputes over names registered with them will be
> > > >referred? IF SO, SINCE LIABILITY WILL ACCOMPANY SUCH A ROLE,
>
> No poll should express legal conclusions like this.
>
> Nuff said. :-)
>
> Bill Lovell
>
> > WHAT KIND OF
> > LIABILITY SHOULD THE REGISTRARS ASSUME?  DAMAGES, COSTS, ETC.?
> > > >011.    Do policies for accrediting or de-accrediting dispute resolution
> > > >service providers need to be specified in greater detail? WOULD IT BE
> > USEFUL TO CONSIDER A STANDARD SET OF CRITERIA FOR QUALIFICATIONS FOR
> > PANELISTS WHICH ALL PROVIDERS MUST MEET TO BE ICANN CERTIFIED? Are any
> > providers'
> > > >supplemental rules inconsistent with either due process and/or the ICANN
> > > >rules?
> > > >012.    Should the UDRP be amended to enable respondents to initiate a
> > > >"declaratory judgment" regarding their "rights and legitimate interests"
> > in a
> > > >name?
> >
> > -----Original Message-----
> > From: William S. Lovell [mailto:wsl@cerebalaw.com]
> > Sent: Saturday, June 30, 2001 2:24 PM
> > To: Jefsey Morfin
> > Cc: ga@dnso.org
> > Subject: Re: [ga] Re: [ga-udrp] UDRP Questionnaire
> >
> > No one should use the UDRP  -- it's a sham and a fraud.
> >
> > Bill Lovell
> >
> > Jefsey Morfin wrote:
> >
> > > Should non legacy TLD use the UDRP?
> > >
> > > If you say not, it means that the money advantage obtained by NSI from
> > this
> > > system is more important than TM Holders rights.
> > >
> > > If you say yes, it means they should participate to the debate as such...
> > >
> > > Jefsey
> > >
> > > On 10:04 30/06/01, DannyYounger@cs.com said:
> > > >The questions cited below have been put forth by Milton Mueller, and seem
> > to
> > > >be a good starting point.
> > > >http://www.dnso.org/clubpublic/tor-udrp/Arc00/bin00000.bin
> > > >
> > > >001.    To what extent are panel decisions consistent with applicable
> > law?
> > > >002.    Are decisions consistent across panelists and dispute resolution
> > > >service providers, and if not, what can be done about it?
> > > >003.    Is the potential for abuse of claimed common law rights so great
> > that
> > > >the policy should be limited to registered marks?
> > > >004.    Should generic names, geographical names, initials and numbers be
> > > >protected from claims by any trademark or name rights' owner, regardless
> > of
> > > >the owner's fame?
> > > >005.    Is the high respondent default rate due to a lack of real and
> > timely
> > > >notice of complaints and/or a lack of time to respond?
> > > >006.    Do complainants and respondents have parity in post-UDRP access
> > to
> > > >the courts?
> > > >007.    Should the ability to challenge a name under the UDRP expire
> > after a
> > > >single registrant has held the name for a specified period of time?
> > > >008.     Should there be an internal review mechanism (such as an appeal
> > > >panel drawn from all the Providers) to overturn clearly erroneous
> > decisions
> > > >without resorting to courts?
> > > >009.    Does Complainant selection of the resolution service provider
> > lead to
> > > >"forum shopping" that tends to bias decisions against Respondents?
> > > >010.    Should registrars, rather than complainants, pre-select the
> > > >Provider(s) to whom all disputes over names registered with them will be
> > > >referred?
> > > >011.    Do policies for accrediting or de-accrediting dispute resolution
> > > >service providers need to be specified in greater detail? Are any
> > providers'
> > > >supplemental rules inconsistent with either due process and/or the ICANN
> > > >rules?
> > > >012.    Should the UDRP be amended to enable respondents to initiate a
> > > >"declaratory judgment" regarding their "rights and legitimate interests"
> > in a
> > > >name?
> > > >
> > > >What other questions should be added to this list?
> > > >--

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