RE: [nc-udrp] DRAFT summary to date

["Katrina Burchell" <Katrina.Burchell@unilever.com>]

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\viewkind4\uc1\pard\cf1\lang1033\f0\fs20  dear colleagues\par
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 I found Dan's layout useful and have the following comments which I have added to the text below in capital letters (not shouting just showing my suggestions in different font!!)\par
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additional questions I would like to suggest are:\par
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WERE YOU AWARE OF THE PANELIST(S) ASSIGNED TOYOUR CASE AND THEIR EXPERIENCE/QUALIFICATION TO REVIEW THE DISPUTE\par
ARE YOU AWARE OF THE EXPERIENCE OR RELEVANCE OF PANELISTS GENERALLY AND HOW THEY ARE APPOINTED AND IF NOT ARE YOU CONCERNED ABOUT THIS\par
HAVE YOU EVER DECIDED AGAINST TAKING A COMPLAINT TO UDRP AND IF SO WHY\par
DO YOU BELIEVE IT WOULD BE USEFUL IF UDRP PROVIDED A MEDIATION SERVICE OR A COOLING OFF PERIOD TO ALLOW PARTIES TO DISCUSS THE DISPUTE AND REACH AN AMICABLE SOLUTION?\par
HAVE YOU HAD EXPRIENCE OF OR BEEN INVOLVED IN REVERSE HIJACKING AND WHAT WAS YOUR EXPERIENCE OF UDRP IN THIS PROCESS?\par
DO YOU THINK THAT UDRP SHOULD BE UNIFORM ACROSS GTLDS AND CCTLDS AND THAT COMPLATINS AGAINST BOTH DOMAIN NAME LEVELS CAN BE MADE IN ONE APPLICATION?\par
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Finally I was asked in an earlier message to comment on the .uk dispute procedure.  The .uk dispute resolution procedure http://www.nominet.org.uk/ref/drs-procedure.html has two main differences to the UDRP.  The first is that the decision reached by an "expert" can be appealed to a panel (of three) and the second is that there is a process for mediation prior to the formal procedure starting. Nominet will select the expert and the panel. At the moment we dont have any real experience of the expert panellists because they havent been appointed.  However we do have some expereience of the mediation working because that system existed prior to this new one.  Nominet always said that they thought mediation was a good thing as it usually ended in parties reaching agreement voluntarily.  In trade mark law in some countries in Europe there is also what is called a cooling off period.  Care needs to be taken here with this approach because mediation or cooling off is not necessaril!
 y in the favour of the smaller or weaker party who could feel bullied into taking a solution rather than risking the costs of a more formal procedure.  The other difference of course with Nominet is that the procedure is handled by Nominet themselves rather than third parties such as WIPO or NAF.  Whether this is sufficiently independent is a matter of opinion.  What is useful here is that Nominet being the Registry also have the power to implement the expert decisions ie transfer them or cancel them which seems to be missing from UDRP.\par
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regards\par
Katrina Burchell\par
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\pard\li360\cf0\protect\f1\fs16 -----Original Message-----\par
\protect0\pard\protect\fi-1440\li1800\tx1440\b From:\tab\b0 Dan Steinberg [SMTP:synthesis@videotron.ca]\par
\b Sent:\tab\b0 Monday, October 15, 2001 5:59 AM\par
\b To:\tab\b0 'nc-udrp@dnso.org'\par
\b Subject:\tab\b0 [nc-udrp] DRAFT summary to date\par
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                                                         \b\fs16 DRAFT\b0\fs20  \par
\protect0\pard\protect\li360\sb90 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) \par
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. \par
\ul Identification of commenter:\ulnone  \par
This section serves to place the comments received in context.  Please put a check next to each category that applies to you. \par
___  Constituency member (If so, please indicate which Constituency _______________) \par
___  Complainant \par
___  Respondent \par
___  Panelist (If so, please indicate which Provider ______________________) \par
___  Other (Please identify your primary interest in the UDRP _____________________ \par
  \par
The remainder of the question\cf1\protect0\f0 S \cf0\protect\f2  both seek feedback on actual experiences, and opinions on what could be improved. \par
\ul Court-like:\ulnone  \cf1\protect0\f0   I THINK THESE SECTIONS MIGHT BE BETTER STILL GROUPED BUT WITH HEADINGS SUCH AS SECTION A, SECTION B ETC AND NO INTRODUCTORY PARAGRAPH TO AVOID LEADING ANYONE ALONG ANY PARTICULAR LINE OF ANSWERING\cf0\protect\f2\par
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. \cf1\protect0\f0 SEE COMMENT ABOVE\cf0\protect\f2\par
        Should some body\cf1\protect0\f0  (SHOULD WE EXPLAIN/DEFINE "BODY"?)\cf0\protect\f2  be able to establish a rule of law that all panelists would be required to follow? \par
        Have you used the option of staying the result of a UDRP decision by filing a lawsuit in a pre-identified jurisdiction? \par
        If so, did this mechanism function effectively for you and why? \par
   ·  procedural due process \par
        Should complainants be allowed to add newly discovered domain names involving the same respondent to a complaint and why? \par
        Were there any difficulties in collecting or submitting proofs or other materials in the process of dispute resolution? \par
        If any, please describe \par
  · notice \par
        do you feel there is some need\cf1\protect0\f0  CHANGE TO "A NEED" INSTEAD OF SOME NEED \cf0\protect\f2  for improvement in notice procedures? (new material added by DS) \par
        Have you been well informed of the course and schedule of dispute resolution? \par
        If so, by whom? \par
  · supplemental rules \par
        Do you believe the providers\rquote  supplemental rules should be uniform and why? \par
        Do you feel there is some lack of procedural due process in supplemental rules? \par
        Please indicate to which Provider(s) your comments apply  (new material added by DS) \par
  ·  ability to appeal \par
        Do you believe there should be an appeal process within the UDRP and why? \par
        If yes, what would it look like? \par
        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? \cf1\protect0\f0 ISNT THIS THE SAME POINT AS THE PREVIOUS BUT ONE QUESTION?\cf0\protect\f2\par
        Has your UDRP decision been challenged in national court and if so, did the court decide the case differently than the UDRP panelists? \par
   · publication/visibility of decisions \par
        Do you believe copies of the complaints and responses should be publicly accessible and why? \cf1\protect0\f0\par
DO YOU BELIEVE THAT THE DECISIONS SHOULD BE AVAILABLE IN ONE CENTRAL PLACE ACCESSIBLE FOR PANELISTS AND PUBLIC?\par
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SHOULD THIS BE DURING OR ONLY AFTER THE DECISION?\cf0\protect\f2\par
   · speed of decisions and the tradeoff between speed and depth \par
        Is it more important to you that process be inexpensive, or that the process be thorough? \par
        Is it more important to you that the process be quick, or that the process be thorough? \par
        If you are a panelist or provider, do you believe there is sufficient time to review complaints and answers for sufficiency and why? \cf1\protect0\f0   SHOULD THIS BE ASKED TO EVERYONE RATHER THAN JUST PANELISTS OR PROVIDERS - OTHERS MIGHT HAVE AN IDEA OF HOW LONG IT SHOULD TAKE\cf0\protect\f2\par
        If not, how long would you recommend is needed? \par
\ul Visibility\ulnone  \par
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. \par
        Should Providers be forbidden from advertising their services by using statistics of their decisions, and why? \par
.       Should panelists be disqualified from representing parties before the UDRP? \par
        Should panelists' law firms be disqualified from representing parties before the UDRP? \par
        Should panelists (and their law firms) be disqualified from representing parties in domain name disputes before national courts? \par
\ul Overall fairness\ulnone  \par
The following section focuses on the perceived fairness (or not ) of both the process and the decisions rendered \par
       Section 4(a) of the UDRP requires a complainant to show that the domain name is confusingly similar \par
        to a trademark or service mark in which the complainant has rights. \par
        Do you believe the issue of what is confusingly similar is being decided properly by panelists and why \par
        (please include examples, if possible)? \par
        Under section 4(c)(iii), a respondent can respond to a UDRP complain by showing that it is \par
        making a legitimate non-commercial or fair use of the domain name, \par
        without intent for commercial gain to misleadingly  divert consumers or tarnish the trademark or service mark at issue. \par
        Do you believe the issue of legitimate interests (such as in the case of parody or comparative advertisement) \par
        is being decided properly by panelists and why (please include examples, if possible)? \par
   · reverse domain hijacking \par
        Do you believe reverse domain name hijacking is adequately dealt with under the UDRP and why? \par
        If not, how would you propose the UDRP be revised in this regard? \par
   · fairness of decisions \par
         If you have been a defendant, was the process sufficiently clear to you? \par
        Have you felt that the panelist/panelists were not impartial and considerate in handling the case? \par
        Have you had any problem coming from language barrier or other communication difficulties? \par
        If any, please describe. \par
  \par
   · consistency \par
        Do you believe consistency of UDRP decisions among providers is a problem, and why? \par
        If so, how do you propose to deal with such a problem? \par
        If you have been an arbitrator, was there information in prior decisions \par
        that you would have liked to have but was difficult to find? \par
        should a pending trademark application have weight in UDRP or not (new question added by me) \par
  \par
  \par
   ·  issue of 'confusingly similar' \par
   · issue of 'bad faith' \par
        Section 4(a)(iii) requires a complainant to show the domain name has been registered AND is being used in bad faith? \par
        Do you believe both registration and use should be required or just one of the two and why? \par
        With respect to bad faith (see previous), do you believe that the issue of bad faith is being decided properly by panelists and why? \par
   · precedential value within UDRP \par
        DO you believe UDRP decisions should have precedential value for future proceedings within the UDRP \par
        (outside is another issue entirely that is beyond the scope of our ability to effect change) \par
   · comparison to other dispute resolution proceedings \par
\ul Fees\ulnone  \par
This section covers the issues relating to fees charged to the parties. \par
        Do you feel that the fees being charged by the providers are appropriate? \par
        If not, how do you feel they should be changed? \par
        Do you feel that the fees being paid to the panelists are appropriate? \par
        If not, how do you feel they should be changed? \par
        Should a respondent get a refund on the fee for a three person panel requested by the complainant \par
        when the complainant drops the complaint and why and if so, what type (i.e., full, partial)? \par
\ul Scope\ulnone  \par
This section address issues of scope, such as should the UDRP be expanded to cover other situations? Or should it be decreased in scope. \par
   · possible inclusion of geographic names, personal names, charter violation \par
        Should \ldblquote special\rdblquote  rules on the application of the  UDRP to personal names be established and why? \par
        If yes, what would they look like? \par
        Should \ldblquote special\rdblquote  rules on the application of the UDRP to geographical names be established and why? \par
        If yes, what would they look like? \par
        Should the UDRP be expanded to deal with charter violations of sponsored TLDs and why? \par
        Are there instances where the UDRP applies today that you feel it should not? (new question added by DS) \par
        Do you believe the UDRP adequately deals with the issue of generic trademarks and why (please include examples, if possible)? \par
\ul Other sources\ulnone  \par
This section covers other sources that commenters feel should be investigated when researching proposed changes to the UDRP. \par
   · Dispute Resolution mechanisms developed under the new unsponsored and sponsored TLDs. \par
        Are there mechanisms used/developed by  that you feel show merit in some way? \par
   · other ADR \par
        Have you used a domain name dispute resolution mechanism other then ICANN\rquote s UDRP and if so, \par
        which one(s) and what did you like and dislike about it/them? \par
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-- \par
Dan Steinberg \par
SYNTHESIS:Law & Technology \par
35, du Ravin  phone: (613) 794-5356 \par
Chelsea, Quebec  fax:   (819) 827-4398 \par
J9B 1N1                 e-mail:synthesis@videotron.ca \par
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