Re: [nc-udrp] UDRP Questionnaire

[Dan Steinberg <synthesis@videotron.ca>]

John,

A nice well-balanced position. I would have a hard time arguing with it.
I have just one question:
Can you define for me what constitutes 'run-of-the-mill cybersquatting'?
Actually I would appreciate (seriously) a definition of cybersquatting in
general.  When I was researching the French translation I could not find a direct
word to translate it so I searched for a definition, a phrase, anything I could
use....and found a few hundred different ones.  Given the short time-frame I
chose to take the easy way out and leave the word in as-in (in English) as did
Eric for the spanish translation.  But since the term keeps coming up I would
like to get a definition I can work with in the future.

"John Berryhill Ph.D. J.D." wrote:

> From: "Katrina Burchell" <Katrina.Burchell@unilever.com>
>
> > It goes in favour
> > of the trade mark owner (so some of you may be annoyed!)
>
> In an ideal world, one would expect most decisions to favor the complainant,
> since in an ideal world meritless cases would not be filed.  That is one
> fallacy advanced by the "foaming at the mouth" variety of UDRP critics who
> claim that the overall 80% complainant win rate is, without more, suggestive
> of bias.  There are some issues to be explored there, but the gross
> statistic, without other analysis, is meaningless.  Simply scanning the list
> of domain names involved in UDRP disputes is simple evidence that the Policy
> has been effective to address run-of-the-mill cybersquatting situations
> involving inherently distinctive and famous marks.  That shouldn't be at all
> annoying to anyone.
>
> Substantively, I believe the Policy in its present form is very good, and
> under any policy there will always be "bad" decisions either way, which is a
> simple fact of life.  There are differences of interpretation among panelists
> which has rendered the outcome of some recurring issues to be entirely
> panelist-dependent.  But in the main, my observation is that "bad" decisions
> tend to arise when panelists stray from the thrust of the Policy about which
> there is little disagreement - that it was intended to be a lightweight
> summary procedure for weeding out clearcut cases of abusive bad faith domain
> registration, and not intended to make new law or provide a vehicle for
> complex legal reasoning, balancing tests, or credibility determinations in
> the face of conflicting evidence.
>
> The Policy is, in the main, balanced.  Some interpretations have not been.
> Making the First WIPO report required reading for prospective panelists would
> go a long way toward addressing activist law-making impulses.   The First
> WIPO Report is unambiguously clear about the aims and limitations of the
> Policy.  Alternative dispute resolution mechanisms work well when they are
> based on an understanding of applicable law.  Where there is no applicable
> law, arbitration proceedings are not a good vehicle for forging a new common
> law which may be diverging from existing legal norms.  A perfect case in
> point is the history of the cello.com domain name.  On the same facts where a
> US federal judge, with more briefing and oral argument, could not find in
> favor of either party on summary judgment and the case was later dismissed, a
> UDRP panelist subsequently decided, on the same record, to effectively
> reverse a federal court decision.  The Policy is very carefully worded to
> refer to it as an "administrative proceeding" for a reason, and is
> inappropriate for reversing a final judgment of a court.
>
> I also do not agree with the "foaming at the mouth" camp's protestations that
> the UDRP is some horrendous burden foisted on domain name registrants, and
> should be eliminated.  The UDRP provides a real benefit to legitimate domain
> name registrants who would otherwise not have the means to fight a court
> battle in what would likely be a remote jurisdiction.  By the same token, it
> lowers the barrier to the occasional specious claim made by a complainant.
> But the UDRP at least provides a fighting chance that many domain name
> registrants would not otherwise have.
>
> There are some technical problems, such as the "cancellation" outcome, which
> have caused more grief for the unwary than are warranted.  Another issue is
> educating the registrars.  I spent most of my working time today trying to
> retrieve a domain name from a complainant who lost a UDRP proceeding, and to
> whom the registrar then transferred the domain name anyway.  That's not the
> first time I've had to deal with gross registrar noncompliance, and it is
> time flushed down the toilet.
>
> That said, it has been my observation that, procedurally, my doctor suggests
> I stay with representing complainants, because some of the procedural
> nightmares on the respondent end of the process have at times driven my blood
> pressure to dangerously high levels.  Receiving a three-inch thick book of a
> "supplemental" to a ten page original complaint when you have three hours
> left to respond according to the provider's supplemental rules is not
> anyone's idea of fair.  And, yes, I've seen it happen.  But if any procedural
> changes are determined to be warranted, the over-riding goal should be to
> keep the entire process as simple and as understandable as possible.
>
> In any event, this long-winded note was simply meant to note that in
> evaluating responses, those from actual participants should be distinguished
> from those of casual windbags  (other than me, of course).  No doubt there
> will be those which express the view that the Policy is a crime against
> humanity, but there is little reason to actively solicit that sort of input.
>
> John Berryhill
> Philadelphia, Pennsylvania

--
Dan Steinberg

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