Re: [ga] Re: Mansfield Spam on a usenet newsgroup? - Parish the thought..??

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

>
> 5. The footnote below is just plain wrong.  Dr.
> Berryhill appears to confuse enforcement of an
> "arbitration" award in a US Court as a formal
> arbitration with the definition of "arbitration."  Any
> binding decision making process in which both sides
> make a presentation and a third party renders a
> decision based on principles of equity or law is an
> arbitration.

Someone had better bring this to the attention of the folks who wrote the
UDRP, as they seem to make a distinction between an administrative proceeding
under the UDRP and an arbitration in UDRP Paragraph 8. (and, of course, the
word "binding" is right out in accordance with Rule 4)  No court has applied
a standard of review less than _de novo_ to a UDRP decision, because a
"challenge" to a UDRP decision is not really a challenge to the UDRP
decision, but an independent determination under the Lanham Act (see, e.g.
the 1st Circuit's analysis of the corinthians.com case, or the Ontario
Court's determination that the canadian.biz decision was right screwy).  The
standard of review applied to a binding arbitration is much different than
the manner that any court has treated a UDRP decision, which by its own terms
is not binding on the parties.  In point of fact, a UDRP decision is not
directed at the parties at all - it is directed to the registrar, since the
registrar is the ONLY party who is ordered by a UDRP panel to do, or refrain
from doing, anything at all.

But, if there is an explanation for the distinction between condition (a) and
condition (b) in Paragraph 8, I'm all ears:

---------
8. Transfers During a Dispute.

a. Transfers of a Domain Name to a New Holder. You may not transfer your
domain name registration to another holder (i) during a pending
administrative proceeding brought pursuant to Paragraph 4 or for a period of
fifteen (15) business days (as observed in the location of our principal
place of business) after such proceeding is concluded; or (ii) during a
pending court proceeding or arbitration commenced regarding your domain name
unless the party to whom the domain name registration is being transferred
agrees, in writing, to be bound by the decision of the court or arbitrator.
----------

Now, under Par. 8 of the UDRP, is a UDRP proceeding itself an arbitration?
If it is, then it sure makes one hash of that paragraph.  Why use two
different words for the same thing?




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