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Re: [nc-udrp] UDRP Review Questionnaire
Caroline:
With regard to the question below, I
wonder whether it might be simpler to revise the question into two questions
such as the two questions set out in red below. My reasoning is
two-fold. First, the current question is long and laborious. Second,
the question is very U.S. centric.
1. (new) Section 4(a)(I)
of the UDRP requires a Complainant to show that the domain name is
identical or confusingly similar to a trademark or service mark in which the
complainant has rights. In
determining whether a domain name is confusingly similar to Complainant’s
trademark/service mark, should a panelist look beyond their physical
representations and consider other factors, such as for example the similarity
or dissimilarity between the respective goods/services, the similarity or
dissimilarity of established, likely-to-continue trade channels, the conditions
under which and buyers to whom sales are made, i.e., “impulse” vs. careful,
sophisticated purchasing, the fame of Complainant’s mark (sales, advertising,
length of use), the number and nature of similar marks in use on similar goods,
the nature and extent of any actual confusion; the length of time during and
conditions under which there has been concurrent use of the domain name and
Complainant’s trademark/service mark without evidence of actual confusion, the
variety of goods on which the Complainant’s mark is or is not used (house mark,
“family” mark, product mark), and the market interface between Complainant and
the domain name owner? Why or why
not?
Section 4(a)(I) of the UDRP requires a Complainant
to show that the domain name is identical or confusingly similar to a trademark
or service mark in which the complainant has rights. Should the UDRP be amended to include
a list of factors to assist panelists in determining when a "confusing
similarity" exists? Why or why not?
If you answered yes to Question No. *,
what factors should be included in any such list?
As
always, thanks for your hard work in this area.
J.
Scott Evans
----- Original Message -----
Sent: Monday, October 29, 2001 6:22
PM
Subject: [nc-udrp] UDRP Review
Questionnaire
> Sorry for the delay, but here is the most current
version of the > questionnaire. I have taken the liberty to move
some questions around but > for the time being have kept the numbering
the same so people could > compare it against their earlier notes and
versions. (In other words, the > numbering currently makes no
sense, but just disregard) I have put in > comments to notify you all
when I changed any language or added new > questions. >
> I also believe that we need to have an introductory paragraph to
the > questionnaire a draft of which is provided below. >
"Pursuant to the UDRP Review and Evaluation Terms of Reference, version
2 (which can be found at http://www.dnso.org/dnso/notes/2001.NC-tor-UDRP-Review-Evaluation.html)
the UDRP Review and Evaluation Task Force hereby submits a questionnaire
to solicit public comment through a bottom up, consensus-building DSNO
process regarding various aspects of the existing UDRP. The Task
Force has drafted this questionnaire with an eye towards not only
identifying potential areas of reform, but also generating useful
suggestions to the extent that modifications to the UDRP are
suggested. Therefore, to the extent that your responses are critical
to the existing UDRP, we request that your responses also include proposed
solutions. Each individual should submit only one response to this
questionnaire. There is absolutely no advantage in submitting
multiple responses since the Task Force will not be collecting any
statistics based on the responses it receives. Rather, it is
only interested in the merits and the substance of the comments it
receives.
This questionnaire is initially being submitted in English,
but Spanish and French versions will be issued shortly.
We thank
you for your time and consideration in completing
this questionnaire.
UDRP Review and Evaluation Task
Force November 1, 2001"
> Given my delay in getting this to you,
please let me have your thoughts by > 9 am central standard time on
Thursday, November 1st. Except with respect > to the new or revised
stuff, this is not the time to be asking for a major > overhaul of the
questionnaire. You all have had this month to do that. > Assuming
no major changes or objections are raised, I plan to incorporate > any
final comments and send the questionnaire to the DNSO Secretariat for >
posting to the ICANN website, the DNSO website, the GA and the >
Constituency websites later that day on Thursday, Nov. 1. I will
also > send a copy to Erick and Dan for translation into Spanish and
French, > respectively. If there is anyone else that could
translate the > questionnaire any other languages, it would be greatly
appreciated. > > Once the questionnaire is out, we still have
work to do. First and > foremost, we need to be reviewing results
as they come in. I will check > with the Secretariat how we will receive
copies of the response and get > back to you on that. Second, we will
need to also review third party > studies, a list of which I will
provide to you shortly. > If anyone has any questions, please let me
know.
> <<UDRP Review Questionnaire.DOC>>
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