Re: [ga] Re: UDRP study

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

Paul Cotton wrote:

> Doesn't surprise me at all.
>
> When you have a dispute service mainly presided over by people who are
> making their living within the legal arena, then they are bound to be biased
> towards trademark holders as that has been drummed into them as part of
> their career path.

As a patent and trademark attorney, I must take strong exception to this
slander of the profession. It is easy to group all attorneys into one bunch
and then mouth platitudes thereon, but in so doing one forgets the basic
feature of the legal profession: every case has two sides. Of course, one
can reasonably maintain that the ICANN Intellectual Property Consituency
is loaded with attorneys that assert the trademark rights of large corporations,

that the UDRP is stacked in favor of trademark owners, that WIPO is a
rubber stamp for trademark owners, and so on -- I have myself strongly
argued that position, as have many others whose sympathies lie with the
individual, so it is not at all appreciated to find one's "career path" being
so described.

> It also doesn't take a rocket scientist to see that the
> more pro-complainant decisions that are made the better the likelihood of
> future cases going to the same provider - meaning more money for the
> provider and for the panellists.

True.

> The lack of any kind of review process means panellists can do pretty much
> what they please with impunity.  It also shows a complete lack of regard for
> the udrp itself and for the rights of domain holders in general.  Bad
> decisions are not only not reviewed they are being used in future cases to
> support yet further decisions that are not using the udrp rules for their
> outcome.

Also quite true. But why is that? It is because here we have "cases" that do
NOT have two sides.  From the outset, a child of 8 would have known that
to register a domain name requires at least both a registrar and a registrant.
From the outset, that second party has never had any representation in this
so-called "resolution" process, commencing with the Network Solutions
"policy" and ultimately leading to the UDRP and its stable of "right-thinking"
panelists.

What is the solution? Well, at least two small steps may be taken, which are:
a) an expedited formation of an "individuals" -- "registrants" -- IDNHC --
by whatever name -- Constituency within the DNSO; and
b) the election to the Board of Directors of Joanna Lane, whose commitment
to the rights of the individual are well known, and the election thereafter, in
every
subsequent election, from every geographic region, of Directors that are
likewise
committed to tilt the scales towards the interests of registrants who, after
all, are
the ones who pay the bills for everything.

Mere complaints (let alone mudslinging) do not advance that cause.

Bill Lovell

> Regards
>
> Paul Cotton
> Director
> SafetyNet Systems Ltd
> www.joinin.com
>
> ----- Original Message -----
> From: "Ladi" <dnso@ladi.net>
> To: "'ga@DNSO.org'" <ga@dnso.org>
> Sent: Monday, August 20, 2001 2:37 PM
> Subject: [ga] UDRP study
>
> Published today by Michael Geist in BNA Internet Law News:
>
> UDRP STUDY RAISES BIAS CONCERNS
> A study of 3094 ICANN UDRP cases that I am releasing today finds that
> when providers control who decides a case (which they do for all single
> panel cases), complainants win just over 83 percent of the time.  When
> provider influence over panelists diminishes, which occurs in
> three-member panel cases, the complainant winning percentage drops to 60
> percent.  In addition to the dramatic difference in outcome between
> single and three-member panels, the study finds that case allocation
> appears to be heavily biased toward ensuring that a majority of cases
> are steered toward complainant-friendly panelists. As of July 7, 2001,
> an astonishing 53% of all NAF single panel cases (512 of 966) were
> decided by only six people.  The complainant winning percentage in those
> cases was an astounding 94%. WIPO, meanwhile, has failed to assign even
> one of its 1629 single panel cases to at least two panelists perceived
> to be pro-respondent.  Of the 104 WIPO panelists to have decided five or
> more cases, all but one have complainants winning at least 50% of the
> time. Study at http://aix1.uottawa.ca/~geist/geistudrp.pdf
> Media coverage at
> http://interactive.wsj.com/articles/SB998251965684550590.htm
> <http://www.globeandmail.com/servlet/GIS.Servlets.HTMLTemplate?tf=tgam/c
> ommon/Fu
>
> llStory.html&cf=tgam/common/FullStory.cfg&configFileLoc=tgam/config&vg=B
> igAdVari
>
> ableGenerator&date=20010820&dateOffset
> =&hub=headdex&title=Headlines&cache_key=he
> addexBusiness&current_row=15&start_row=15&num_rows=1>
>
> AND NOW YOU CAN SEARCH THE DATA YOURSELF
> In conjunction with the release of the Fair.com? An
> Examination of the Allegations of Systemic Unfairness in the ICANN UDRP,
> I have ported much of the data behind the study to the Web.
> Udrpinfo.com features a searchable database of panelist UDRP records
> along with other UDRP resources.  Beta site at http://www.udrpinfo.com
>
> Apologies for the somewhat mutilated URLs, but I think this says quite a
> bit about the way UDRB is (not) working.
>
> ~Ladi
>
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--


The URLs for Best Practices:
DNSO Citation:
http://www.dnso.org/dnso/gaindex.html
(Under "Other Information Documents"; "August 2001:
Proposal for Best Practices for the DNSO GA")
Part I:
http://www.dnso.org/dnso/notes/20010813.GA-BestPractices.html
Part II:
http://www.dnso.org/dnso/notes/20010813.GA-BP-flowchart.pdf
(Access to the .pdf file requires installing the Adobe Acrobat
Reader, which is available for free down load at
http://www.adobe.com/products/acrobat/readstep2.html.)


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