RE: [nc-udrp] DRAFT summary to date

["Chicoine, Caroline G." <CCHICOINE@thompsoncoburn.com>]

Dan, I have not yet had a chance to thoroughly review your email but I thank
you for accumulating the questions that have been posted to date.   
 
You indicated that "Since there was no objection to the grouping I proposed,
it forms the basic framework."  Given the size of our group and the rather
limited number of postings to date, I would prefer to hold off at least at
this stage from concluding that a lack of objections is in fact an
affirmative acceptance of the proposed approach.  It may very well be that
this conclusion will be reached, but I would like to see more participation,
especially from those you have yet to contribute to these discussions.
 
As you all know, we have until the end of this month to finalize the
questionnaire.  So that we are not scrambling at the last minute, I would
appreciate of each of you who have not yet participated to start providing
us with your comments as soon as possible, both as to substantive questions
that should be addressed by the questionnaire as well as the format.
 
 

-----Original Message-----
From: Dan Steinberg [mailto:synthesis@videotron.ca]
Sent: Sunday, October 14, 2001 11:59 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 
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