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Re: [nc-udrp] My Comments on Draft III
Well since Caroline has offered to reveiw everything over the weekend that
gets me off the hook for draft III. I have some comments (in black identified
by my initials (DS)). Please include these comments for consideration
along with my earlier post.
James Carmody wrote:
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?
25a (DS) If there is a finding of 'reverse domain hijacking' should there
be a monetary penalty?
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?
43a (DS) should a pending trademark application have weight in UDRP or
not ? (question added by me, removed before it was possible to discuss)
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!
Personals.
--
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
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