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

[Jeff Williams <jwkckid1@ix.netcom.com>]

Leah, John, Andrew and all former DNSO GA members,

  I will chime in here on a few points of interesting that I started this
thread...
( More below)

L. Gallegos wrote:

> On 23 Jan 2003 at 21:18, Andrew S. Mansfield wrote:
>
> > John:
> >
> > I stick by the simple, non-US law-based definitino of
> > arbitration.
>
> You can do that, of course, but in the UDRP rules it is still considered
> to be an "administrative procedure" and forced upon so-called
> participants.  Using an academinc definition doesn't change the fact or
> the rules.  Courts are under no obligation to refer to or use the
> decisions made by UDRP panelists.  Many do not consider them at all.

  Good point here Leah.  This is what I tried to directly point out to
Andrew from the already known documentation on Wipo's own web site
under a search on Andrews name in PCT documents.  However it should
be noted that a number of US jurisdictions do recognize and give
consideration to the non-us based definition on arbitration.  But most
still don't, and given the current political atmosphere, won't in the future.

>
>
> >
> > (from Cambridge International Dictionary of English)
> >
> > arbitrate
> > verb
> > to make a judgment in (an argument), usually because
> > asked to do so by those involved
> >
> > arbitration
> > noun [U]
> > to have the disagreement solved by an outside person
> > who has been chosen by both sides
> >
> > arbitrator
> > noun [C]
> > An arbitrator is a person whose official role is to
> > make a decision between two people or groups who do
> > not agree.
> >
> > The real-world effects of a UDRP decision in the case
> > of transfer are dramatic.  UDRP participants manifest
> > consent when registering a domain name and by not
> > choosing to go to national courts.
>
> In a contract of adhesion, yes.  Hopefully that will change. One cannot,
> at this time, register a domain under the ICANN system without agreeing to
> UDRP, so this is forced or consent under duress.  It is certainly not
> voluntary if one wishes to have an internet presence in the USG root.

  Also another good point here Leah.  And one argument that has been
used in court recently as you likely know.  To me e this type of poor
contractual formulation has led and still creates, a worse problem that
we started out with and creates also another area of legal morass
by which some segments of the legal community such as Andrew
seem to be advertising for, to sell his services to.  That's not
good policy or good for business IMHO.

>
>
> >
> > Andrew Mansfield
> >
> > --- "John Berryhill Ph.D. J.D."
> > <john@johnberryhill.com> wrote:
> > > >
> > > > 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?
> > >
> > >
> > >
> > >
> > >
> >
> >
> > =====
> > Andrew S. Mansfield
> > mansfield@pobox.com
> >
> > --
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> >
> >
>
>

Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 129k members/stakeholders strong!)
================================================================
CEO/DIR. Internet Network Eng. SR. Eng. Network data security
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number: 214-244-4827 or 214-244-3801


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