RE: [nc-udrp] DRAFT summary to date

["M. Scott Donahey" <MSD@tzmm.com>]

I, for one, cannot agree to the editorial comments included in the 
suggestions.  For example:
"Court-like
This section covers how much commenters [sic] 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."

This neither represents my view, nor is it a fair characterization of the 
questions.  Can we please have questions only, and dispense with the 
editorials which purport to represent the views of the Task Force, when in 
fact they do not.

Best regards.

M. Scott Donahey
Tomlinson Zisko Morosoli & Maser LLP
200 Page Mill Rd.
Palo Alto, CA  94306
Phone:  (650) 325-8666
Fax:      (650) 324-1808
msd@tzmm.com
www.tzmm.com

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 -----Original Message-----
From: 	synthesis@videotron.ca [mailto:synthesis@videotron.ca] 
Sent:	Sunday, October 14, 2001 10:00 PM
To:	nc-udrp@dnso.org
Subject:	[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


 << File: ALTERNATIVE.HTM >>