Re: [ga-udrp] UDRP Questionnaire

[Andy Gardner <andy@navigator.co.nz>]

Further questions:

1. Should a complainants rights under the UDRP exceed/override the terms it
agreed to under the Registrar/Registrant contract?

This question is based on many cases where a complainant was a prior owner
of the domain in question and although clearly without rights in their
registration contract (all rights expire if annual fee is not paid), the
panelist has taken the name away from the new registrant and awarded it to
the previous owner - totally destroying the new registrants business plans
and investment in the name - with zero compensation - even if the name was
used for an entirely different business. Sometimes this has taken place 6
months or more after the name was re-registered.

This is particularly crazy considering the new registration system gives no
information regarding the name's history at registration time, and the
registration agreements do not warn that prior registrants may have a
perpetual claim on the name.

2. Should the complainant or respondent have the right to re-open the case
at a different provider if they can prove that the original panel ignored
or modified evidence mentioned in the decision, in order to match the
decision they wanted to end up at?

3. Should panelists be allowed to make arbitrary decisions on other accused
TM infringements of a respondent without any study of facts of those
matters, in order to allow them to brand the respondent as a habitual TM
infringer - or should such evidence be deemed inadmissible when presented
by the complainant (or bought into evidence by the panel themselves).

Which leads to:

4. Should panelists be allowed to bring evidence into the proceeding
themselves and make decisions based on that evidence, particularly if the
parties are not given the opportunity to be heard regarding it?

5. Should panelists be required to include and comment on all evidence
submitted by the parties when writing up their decision? (Panelists
currently pick out the evidence that suits their decision and ignores
whatever evidence that would cause any problems. This can be very damaging
to a respondent as the finding can be used against them in further UDRP
cases, and the future panelists may not have access to the original
complaint and response.

6. Should ICANN be forced to adopt a hands-on approach to the management of
the UDRP process, on a case-by-case basis? (Currently all complaints to
ICANN regarding particular cases appears to be ignored - non enforcement of
the ICANN rules regarding the performance and actions of providers).

7. Should a provider be responsible for major drafting work regarding the
UDRP? (WIPO - just who's in charge here?)

8. If serious flaws in the current UDRP process are exposed and a new
system put in place, should prior cases be allowed to be re-heard under the
new rules?

9. In cases where it can be shown (and is agreed by an independent review
panel) that the panel acted outside the current UDRP rules, should the
losing party be allowed to have the case re-opened and examined by a
panelist of their choice at the cost of the original provider?

10. Should question 9 be retroactive dated back to the start of the UDRP?

That's all for now, I'm sure I'll think of some more later.

-- 
Andrew P. Gardner
barcelona.com stolen, stmoritz.com stays. What's uniform about the UDRP?
We could ask ICANN to send WIPO a clue, but do they have any to spare?
Get active: http://www.tldlobby.com
--
This message was passed to you via the ga-udrp@dnso.org list.
Send mail to majordomo@dnso.org to unsubscribe
("unsubscribe ga-udrp" in the body of the message).
Archives at http://www.dnso.org/archives.html