[nc-udrp] Date: Fri, 26 Oct 2001 17:08:37 -0500

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

First, I want to thank everyone for their comments, and a special thanks to
Dan for pulling it all together.  I plan to review everything to date this
weekend and post the most current version on Monday and given that our
schedule requires us to submit it for public comment next Thursday, I ask
that you all take one last look and let me have your final comments by close
of business Wednesday (say midnight central standard time).  
 
While we will post an English version on Thursday, I would ask that my
translation volunteers be ready to translate as soon as they can thereafter.
 
Also, if there is anyone that is planning to attend the LA meting and has
not already emailed me so, please do.
 
Thanks again for everyone's help.

-----Original Message-----
From: James Carmody [mailto:carmodyjim@yahoo.com]
Sent: Monday, October 22, 2001 9:46 AM
To: UDRP Task Force; Caroline G. Chicoine
Subject: My Comments on Draft III



First of all, my thanks and congratulations to those who have gotten the
Questionnaire this far!  My comments (in green and in brackets) are really
refinements looking at the issues through the eyes of a panelist.

1.  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
_____________________   

2.  Have you ever challenged a UDRP decision in court?  Why or Why not?

3.  If you have ever been a party in a UDRP action, were you represented by
counsel? If not, why not? 

4.  Should the selection of a provider continue to be the exclusive right of
the complainant?  Why or why not?

[How do you propose any transfer to another provider be accomplished from a
procedural standpoint?]

5.  Should complainants be allowed to amend their complaint? Why or why not?
Should Respondents be allowed to amend their responses?  Why or why not?

6. [ Did you experience ]any difficulties in collecting or submitting proofs
or other materials in the process of dispute resolution? If so, please
describe.

7.   How would you improve the notice procedures found in the UDRP? 

[Do the UDRP rules allow enough time for the parties to state their
positions and for the panelists to rule competently?]

8.   Have you been well informed of the course and schedule of dispute
resolution? 
       
9.   Do you believe the providers' supplemental rules should be uniform?
Why or why not?

10. Should a Complainant be able to re-file a new complaint on the same
domain name?  Why or why not?

11. Do you think there should be the ability to appeal a decision within the
UDRP? IF NO, PLEASE SKIP TO NEXT SECTION. 

12. Do you believe there should be an appeal process within the UDRP and
why? 

13. How should such an appeal process work and how should it be financed? 

14.  Should all appeals go to a 3-member panel?  Why or why not? 

15.  Should prior UDRP decisions [have] any preclusive effect in subsequent
UDRP proceedings involving the same parties and same domain name(s)?

16.  Do you believe copies of the complaints and responses should be
publicly accessible?  Why or why not?

17.  SHOULD THIS [DISCLOSURE BE MADE] DURING OR ONLY AFTER THE DECISION? 

18. Should decisions be in the public domain or should they be the
intellectual property of the providers.       

19.  DO YOU BELIEVE THAT THE DECISIONS SHOULD BE AVAILABLE IN ONE CENTRAL
PLACE 
ACCESSIBLE FOR PANELISTS AND PUBLIC? 
  
20.  Of the following factors, please rank the factors which most influenced
your decision to participate in a UDRP proceeding using a scale from 1 to 5,
with 1 being the most important factor and 5 being the least important.

Cost of proceedings ___        Thoroughness of process ____        Other
_______________________________

Speed of proceedings ___      Quality of decisions _____

Provider reputation ____        Contractual obligation _____

IF YOU ARE NOT A PANELIST OR PROVIDER, PLEASE SKIP TO QUESTION NO. 22.

21.  If you are a panelist or provider, do you believe there is sufficient
time to review complaints and answers for sufficiency?   Why or why not?

22.  Should panelists be disqualified from representing parties before the
UDRP?  Why or why not?

23.  Should panelists' law firms be disqualified from representing parties
before the UDRP?  Why or why not?

24.  If you have been a Respondent and did not respond to the complaint, why
did you decide not to respond? 

25.  How should "reverse domain name hijacking" be dealt with under the
UDRP?

IF YOU HAVE NEVER BEEN A PARTY OR COUNSEL FOR A PARTY IN A UDRP ACTION,
PLEASE SKIP TO QUESTION NO.29

26.  If you have been a party or counsel for a party in a UDRP action, was
the process sufficiently clear to you?  Why or why not?

27.   If you have been a party or counsel for a party in a UDRP action, did
you feel that the panelist/panelists were impartial and considerate in
handling the case?   Why or why not?

28.   If you have been a party or counsel for a party in a UDRP action, did
you have any communication difficulties such as a language barrier?  If so,
please describe your experience. 
 
29.  Do you believe it is important for UDRP decisions to be consistent?
Why or why not?

30.   If so, how would you amend the UDRP to ensure consistency among
decisions? 

31.   If you have been an arbitrator, was there information in prior
decisions that you would have liked to have but was difficult to find? 


    ·  issue of 'confusingly similar' 


        Can someone come up with question(s) here? 


[Should UDRP Policy be more specific on issues such as common law
trademarks, competing trademarks used in different jurisdictions, the issue
of "laches" in asserting a complaint, deference to registered trademarks
which the panelist may feel are generic,  deference to fact allegations,
strength of the mark, etc., in default proceedings. ] 



33.  Do you believe both registration and use should be required for a
finding of cybersquatting?  Why or why not? 


34.  Should the UDRP be revised so that either registration or use alone can
be used to sustain a finding of cybersquatting?  Why or why not?

35.  Should prior UDRP decisions have precedential value for future
proceedings within the UDRP?

[Move to position below 15.]

36.  Do you feel that the fees being charged by the providers are
appropriate?  If not, why not?

37.  If you feel that current fees are not appropriate, how do you feel they
should be changed? 

38.  Do you feel that the fees being paid to the panelists are appropriate? 

39.  If not, how do you feel they should be changed? 

40. Should a respondent get a refund on the fee for a three person panel
requested by the complainant when the complainant drops the complaint if so,
what type (i.e., full, partial)? 

41.  HAVE YOU EVER DECIDED AGAINST TAKING A COMPLAINT TO UDRP AND IF SO WHY?



42.    DO YOU BELIEVE IT WOULD BE USEFUL IF UDRP PROVIDED A MANDATORY
MEDIATION SERVICE OR A COOLING OFF PERIOD TO ALLOW PARTIES TO DISCUSS THE
DISPUTE AND REACH AN AMICABLE SOLUTION? 


43.  Should the UDRP be expanded to cover disputes other than cybesquatting?
If so, what other issues should be covered and why?  


44.   Should the UDRP be expanded to deal with charter violations of
sponsored TLDs?  Why or why not? 


45.   DO YOU THINK THAT UDRP SHOULD BE UNIFORM ACROSS GTLDS AND CCTLDS AND
THAT COMPLAINTS AGAINST BOTH DOMAIN NAME LEVELS CAN BE MADE IN ONE
APPLICATION? 


        Do you believe the UDRP adequately deals with the issue of generic
trademarks and why (please include examples, if possible)?  THERE IS NO SUCH
THING AS A GENERIC TRADEMARK.  A GENERIC IS PER SE UNREGISTRABLE AS A
TRADEMARK.  THEREFORE, THIS QUESTION IS UNSOUND FROM A LEGAL PERSPECTIVE AND
EMOTIONALLY CHARGED TO SOLICIT A RESPONSE.

46.  Are you aware of any other dispute resolution mechanisms for dealing
with cybersquatting that you feel show merit in some way? 

47.  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? 


48.  In what way, other than the questions above, do you feel the process
could be improved. Any further comments are appreciated: 
  



James A. Carmody, nn5o, carmody@lawyer.com
Voice Mail: 713 446 4234; eFax: 815 461 5321 




  _____  

Do You Yahoo!?
Make a great connection at Yahoo!
<http://rd.yahoo.com/mktg/mail/txt/tagline/?http://personals.yahoo.com>
Personals.