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[nc-udrp] DRAFT summary to date
DRAFT
I have taken the liberty of accumulating the questionnaire suggestions
posted to this list over the past few weeks. Since there was no objection
to the grouping I proposed, it forms the basic framework. I have
added brief placeholder paragraphs to explain each section so that people
wishing to comment can be more aware of the context of each of the questions.
There should probably be explanatory paragraphs for all the bullet sections
as well so that commenters need not be fluent in the language of the law
(in English) in order to respond to this questionnaire. Please note that
I don't consider any of the explanatory paragraphs to be complete, merely
drafts (as is all of the document for that matter)
I think this is the last time I will post this directly as a message,
but switch to word documents if no one has any objection. In the
meantime, my apologies for the poor formatting. Please let me know
if I have missed any questions/suggestions posted to date.
Identification of commenter:
This section serves to place the comments received in context.
Please put a check next to each category that applies to you.
___ Constituency member (If so, please indicate which Constituency
_______________)
___ Complainant
___ Respondent
___ Panelist (If so, please indicate which Provider ______________________)
___ Other (Please identify your primary interest in the UDRP
_____________________
The remainder of the question both seek feedback on actual experiences,
and opinions on what could be improved.
Court-like:
This section covers how much commenters feel the UDRP should resemble
a court. Although court systems vary greatly with jurisdiction, there
is a common thread of expectations that come with the notion of a 'court'
no matter what the jurisdiction. It should be noted that if everyone
wishes the UDRP to be a court, there is no real purpose in having one since
courts already exist.
Should some body be able
to establish a rule of law that all panelists would be required to follow?
Have you used the option
of staying the result of a UDRP decision by filing a lawsuit in a pre-identified
jurisdiction?
If so, did this mechanism
function effectively for you and why?
· procedural due process
Should complainants be allowed
to add newly discovered domain names involving the same respondent to a
complaint and why?
Were there any difficulties
in collecting or submitting proofs or other materials in the process of
dispute resolution?
If any, please describe
· notice
do you feel there is some
need for improvement in notice procedures? (new material added by DS)
Have you been well informed
of the course and schedule of dispute resolution?
If so, by whom?
· supplemental rules
Do you believe the providers’
supplemental rules should be uniform and why?
Do you feel there is some
lack of procedural due process in supplemental rules?
Please indicate to which
Provider(s) your comments apply (new material added by DS)
· ability to appeal
Do you believe there should
be an appeal process within the UDRP and why?
If yes, what would it look
like?
Should a complainant that
loses a UDRP case before a single panel be able to refile the case before
a 3 person panel and why?
Has your UDRP decision been
challenged in national court and if so, did the court decide the case differently
than the UDRP panelists?
· publication/visibility of decisions
Do you believe copies of
the complaints and responses should be publicly accessible and why?
· speed of decisions and the tradeoff between speed
and depth
Is it more important to
you that process be inexpensive, or that the process be thorough?
Is it more important to
you that the process be quick, or that the process be thorough?
If you are a panelist or
provider, do you believe there is sufficient time to review complaints
and answers for sufficiency and why?
If not, how long would you
recommend is needed?
Visibility
In many jurisdictions, there are restrictions placed on lawyers and
courts. These restrictions serve to increase citizen's faith in the judicial
system and the legal profession. But like conflict-of-interest guidelines
for politicians, there sometimes needs to be some economy of scale. For
example in a small town, if the mayor happens to be the only paving contractor....should
the mayor be precluded from bidding on paving Main Street? In a large
metropolitain area, there would be (normally) more than one paving contractor
so it is possible to bar the mayor from bidding on contracts tha that the
town council might be asked to evaluate.
Should Providers be forbidden
from advertising their services by using statistics of their decisions,
and why?
. Should panelists be disqualified
from representing parties before the UDRP?
Should panelists' law firms
be disqualified from representing parties before the UDRP?
Should panelists (and their
law firms) be disqualified from representing parties in domain name disputes
before national courts?
Overall fairness
The following section focuses on the perceived fairness (or not ) of
both the process and the decisions rendered
Section 4(a) of the UDRP requires
a complainant to show that the domain name is confusingly similar
to a trademark or service
mark in which the complainant has rights.
Do you believe the issue
of what is confusingly similar is being decided properly by panelists and
why
(please include examples,
if possible)?
Under section 4(c)(iii),
a respondent can respond to a UDRP complain by showing that it is
making a legitimate non-commercial
or fair use of the domain name,
without intent for commercial
gain to misleadingly divert consumers or tarnish the trademark or
service mark at issue.
Do you believe the issue
of legitimate interests (such as in the case of parody or comparative advertisement)
is being decided properly
by panelists and why (please include examples, if possible)?
· reverse domain hijacking
Do you believe reverse domain
name hijacking is adequately dealt with under the UDRP and why?
If not, how would you propose
the UDRP be revised in this regard?
· fairness of decisions
If you have been a
defendant, was the process sufficiently clear to you?
Have you felt that the panelist/panelists
were not impartial and considerate in handling the case?
Have you had any problem
coming from language barrier or other communication difficulties?
If any, please describe.
· consistency
Do you believe consistency
of UDRP decisions among providers is a problem, and why?
If so, how do you propose
to deal with such a problem?
If you have been an arbitrator,
was there information in prior decisions
that you would have liked
to have but was difficult to find?
should a pending trademark
application have weight in UDRP or not (new question added by me)
· issue of 'confusingly similar'
· issue of 'bad faith'
Section 4(a)(iii) requires
a complainant to show the domain name has been registered AND is being
used in bad faith?
Do you believe both registration
and use should be required or just one of the two and why?
With respect to bad faith
(see previous), do you believe that the issue of bad faith is being decided
properly by panelists and why?
· precedential value within UDRP
DO you believe UDRP decisions
should have precedential value for future proceedings within the UDRP
(outside is another issue
entirely that is beyond the scope of our ability to effect change)
· comparison to other dispute resolution proceedings
Fees
This section covers the issues relating to fees charged to the parties.
Do you feel that the fees
being charged by the providers are appropriate?
If not, how do you feel
they should be changed?
Do you feel that the fees
being paid to the panelists are appropriate?
If not, how do you feel
they should be changed?
Should a respondent get
a refund on the fee for a three person panel requested by the complainant
when the complainant drops
the complaint and why and if so, what type (i.e., full, partial)?
Scope
This section address issues of scope, such as should the UDRP be expanded
to cover other situations? Or should it be decreased in scope.
· possible inclusion of geographic names, personal
names, charter violation
Should “special” rules on
the application of the UDRP to personal names be established and
why?
If yes, what would they
look like?
Should “special” rules on
the application of the UDRP to geographical names be established and why?
If yes, what would they
look like?
Should the UDRP be expanded
to deal with charter violations of sponsored TLDs and why?
Are there instances where
the UDRP applies today that you feel it should not? (new question added
by DS)
Do you believe the UDRP adequately
deals with the issue of generic trademarks and why (please include examples,
if possible)?
Other sources
This section covers other sources that commenters feel should be investigated
when researching proposed changes to the UDRP.
· Dispute Resolution mechanisms developed under
the new unsponsored and sponsored TLDs.
Are there mechanisms used/developed
by that you feel show merit in some way?
· other ADR
Have you used a domain name
dispute resolution mechanism other then ICANN’s UDRP and if so,
which one(s) and what did
you like and dislike about it/them?
--
Dan Steinberg
SYNTHESIS:Law & Technology
35, du Ravin phone: (613) 794-5356
Chelsea, Quebec fax: (819) 827-4398
J9B 1N1
e-mail:synthesis@videotron.ca
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