Re: [nc-udrp] ICANN LA Meeting
Dear All:
First, please allow me to personally thank
Dan for taking the laboring oar in this endeavor. Second, allow me to
thank each and everyone for their fine comments with regard to the proposed
draft questionnaire.
I have had a chance to review Dan's draft
from earlier this week and I have listed my comments below:
1. I must agree with the consensus
position that there should be no categorization or commentary regard the
questions. I believe the questions should simply be listed on the
questionnaire.
2. I also agree with Tim that some
mechanism needs to be implemented so that once a survey participant chooses a
category, the questionnaire then addresses issues pertinent to the
participant. In this regard, I wonder whether we could have the first
question regarding the identification of the participant then cue the form that
would appear with questions geared toward that participant (ie, provider,
complainant or respondent).
3. With regard to the first
question, "Should some body be able to establish a rule of law that all
panelists would be required to follow?" I think this question should be
removed. The policy is the uniform rule applied by all panelist. The
interpretation of this policy may vary, but the rule is uniform. As for
other variances which may occur, I believe there are sufficient questions set
forth in the survey that cover these issues.
4. With regard to the second and
third questions, "Have you used the option of staying the result of a UDRP
action by filing a lawsuit in a pre-identified jurisdiction?" This
question is cumbersome. Why not simply ask, "Have you ever challenged a
UDRP decision? Why or Why not?"
5. With regard to the fourth
question about adding additional domain names to the complaint, why not simply
ask whether complainants should be allowed to amend their complaints and why or
why not? In my opinion, the question as posed is emotionally
charged.
6. With regard to the sixth question
about notice procedures, I suggest we simply ask "How would you improve the
notice procedures contained in the UDRP?" This question is more open ended
and I believe it will solicit more creative responses from the
participants.
7. With regard to the seventh
question about supplemental rules, I suggest rewording the question to read,
"Should the UDRP providers be required to have uniform supplemental rules?
Why or why not?"
8. I do not think we should ask the
eighth question regarding specific providers. The why or why not portion
of the previous question should be sufficient to solicit an explanation from a
participant that has a particular ax to grind concerning an individual
provider.
9. With regard to the ninth question
concerning an appeal process, I believe this question should be modified to ask
whether the participant believes there should be an out of court appeal
available within the UDRP. I do not think we
need a why. I think the "why" is implied (i.e., parities unsatisfied with
the initial decision should have the benefit of a second review of the
decision). The better question is asked in the second part of this
question (i.e., "How should it look?"). I also think we might consider
asking which standard should be used on appeal (e.g., abuse of discretion or de
novo).
10. With regard to complainants that
refile to 3 member panels, I agree with Tim that this is not an "appeal" issue,
but rather an issue of what, if any, preclusive effect prior UDRP decisions
involving the same parties and the same domain name(s) should have.
Perhaps a better way to get to this issue is to ask whether any affirmative
defense should be available under the UDRP and, if so, what those would
be.
11. With regard to the question
concerning a challenge in a national court, I believe this issue is covered by
the earlier question listed under my number 4 above. In addition, I
believe the current form of the question begs the question and should not
remain in the survey.
12. As for the question concerning
speed vs. cost, I believe the current form of this section will prejudice the
results. I would feel more comfortable with either providing five blanks
and asking them to rank the most important qualities of dispute resolutions
mechanisms and/or reasons for the UDRP. Alternatively, my preferred remedy
is for our group to come to consensus on about five or six qualities of dispute
resolution and have the participants rank these qualities in the order of
importance. We might even ask a follow question of how the UDRP might be
improved to meet their ranked list.
13. I see no point in asking the
question about how providers should advertise. I am not sure that ICANN
legally has a right to govern the method, mode or content of a providers
advertising. I think community pressure is a far better tool for making
providers toll the line on this issue. Let's not ask a question that we
cannot securely give ICANN a recommendation which they can then
implement.
14. While it may be important to ask
the two questions regarding disqualification (i.e., panelist law firms in UDRP
actions and panelists before National courts), here again I think the questions
are not going to give us any information that is worthwhile. Any
disqualification of panelists law firms or panelist from national courts would
work a very harsh remedy on the UDRP. Most panelist barely make any money
on the UDRP actions and would simply pull out of the process. Lastly, I do
not think ICANN can put into place any policy that would disqualify panelist
from appearing before a court. This smacks of restraint of trade.
Most jurisdictions won't even allow attorneys to enter non-compete
agreements.
15. With regard to the question
concerning reverse domain name hijacking, I believe this question should be
revised to read "How should the UDRP deal with reverse domain name
hijacking?" Here again, I believe this type of question will solicit more
creative answers. In addition, I think the current form of the question
begs the question.
16. With regard to the issue of
fairness, why is the first question specific to respondents? Why not ask,
"If you have ever been a party to a UDRP proceeding, was the process
sufficiently clear to you? Why or why not?" The question as
currently drafted seems to presume that only respondents are confused by the
process.
17. With regard to the question
concerning the impartiality of the panel/panelist, let's ask "Did you feel the
panel/panelist that heard your case were impartial and
considerate?"
18. Same revision to the next
question on language, let's ask "Did you feel . . . "
19. With regard to the question
concerning consistency of decisions, I suggest we remove "among providers" and
simply ask whether the survey participant believes that a consistency among
decision is important and why or why not.
20. I think the last question
submitted by Dan should be removed. I do not think we should design a
survey that pulls out a fact from one recently reported case and makes it an
issue for our survey.
I hope these comments will assist Dan in
putting together Draft II.
Again, I want to thank everyone for their
input and Milton and Caroline for their leadership.
Kind regards.
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