Re: [nc-udrp] UDRP Questionnaire

["Milton Mueller" <mueller@syr.edu>]

Sorry, "operationalize" is a social science term.
It means you have to translate a concept or 
variable into specific methods or procedure
that produce unambiguous results. One could 
question whether UDRP produces unambiguous 
results, but other than hurling the epithet
"cybersquatting" at registrations one doesn't
like it's the best we can do so far.

>>> Dan Steinberg <synthesis@videotron.ca> 11/18/01 10:04 AM >>>
Milton,

Thanks for the definition. It's one I can certainly live with. Just curious why you
inserted the word "operationally" in there.
Are there non-operational circumstances where this definition fails to apply?

Milton Mueller wrote:

> Dan:
> Operationally, the best definition of
> "cybersquatting" are the three prongs of the
> UDRP itself: a domain name registered that is
> identical or confusingly similar to a trademark
> in which the complainant has rights, to which
> the registrant has no rights and legitimate
> interests, and which has been registered and
> used in bad faith.
>
> >>> Dan Steinberg <synthesis@videotron.ca> 11/17/01 12:30 PM >>>
> 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 adefinition 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
> > statisic, 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 addressng 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 subsequenly 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 gros 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 understandabl 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
>
> SYNTHESIS:Law & Technology
> 35, du Ravin  phone: (613) 794-5356
> Chelsea, Quebec  fax:   (819) 827-4398
> J9B 1N1                 e-mail:synthesis@videotron.ca

--
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