Re: [ga-udrp] UDRP Questionnaire

["NameCritic" <watch-dog@inreach.com>]

More excellent questions to add to the list.

Chris McElroy aka NameCritic

----- Original Message -----
From: "Andy Gardner" <andy@navigator.co.nz>
To: <ga-udrp@dnso.org>
Sent: Saturday, June 30, 2001 11:15 AM
Subject: Re: [ga-udrp] UDRP Questionnaire


>
> 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.

That is agreed. If a Company is supposed to be responsible for policing
their own TM, then how can something as lax as allowing their domain name to
expire be considered policing their own mark. There are many services for as
little as $35 per year that will guarantee this won't happen. Check
SnapNames.com. They can also choose to have the Registrar automatically
renew the domain name or register it for many years at a time. This is not
reasonably protecting a mark.

>
> 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.

Exactly.

>
> 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?

No. This again makes it so companies with a large legal staff and a lot of
money can continue to harass a domain name registrant until they find it to
expensive to keep the domain name due to the cost of constantly defending
it.

>
> 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).

They could not do it in a court of law. They should not be allowed to
consider unrelated matters at all, let alone those that have not been
proven.

>
> 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?

They are not an investigative body. They should only consider evidence
presented by the Complainant and the Respondant, even if they have other
knowledge that relates to the case. They are not there to assist either the
complainant or respondant. They are to arbitrarily decide cases with no
personal additions to the complaint.

>
> 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.

I think they should have to respond to all evidence. All they do by
selectively including evidence in their responses is to make their recorded
decision look more valid. That appearance deceives people and keeps everyone
less informed on how the decision was reached, what evidence was found to be
invalid, what was the evidence considered valid, and other considerations
that helped them reach a decision.

>
> 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).

No. The DNSO should though. The Domain Name Supporting organization should
have that responsibility IMO.

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

No. Providers should not be setting the rules. They should be following
them.

>
> 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?

There would have to be a Committee put into place. (It could be the Appeals
Board if one was created) to review past decisions and most likely only
those with clearly improper decisions could be revisited. There have been a
lot of past problems with cases, but to make a rule retroactive creates
problems that may be greater than those we already face. Can't have the cure
be worse than the disease.

>
> 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?

If it were shown by an Independent Appeals Body instead of a review panel
that would not be necessary. I don't think a review panel then another
arbitration is necessary if the Appeals Panel was allowed to reverse or
alter decisions.

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

Answered above.

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


Great questions to raise.
>

> --
> 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
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