Re: [nc-udrp] Multiple Simultaneous Complaints At Different Providers = Registrar Liability

[Dan Steinberg <synthesis@videotron.ca>]

ummmmm I would agree the first-filing rule would solve the registrar's problem.
But it would not solve the rest of the problems.
In fact...I think it creates more problems.

For if both A and B file UDRP claims, and A's claim is timestamped earlier, it
creates a probably-unrebuttable presumption that A has superior rights to the
name or at least sufficient rights to prevent anyone from filing a UDRP claim
against A.  And this may not in all cases be equitable. For example, if the
domain holder defaulted and A didnt have a perfect claim, if the arbitrator erred
in the decision, such error wouild be unrecoverable. Since we have a system that
depends on people it is by nature imperfect and we cannot expect every decision
to be so.  Everyone is doing their best and we cannot expect more than that.

I think the likeliehood of such cases coming up is highest when there is a
colorable claim but perhaps not a slam-dunk, areas where words probably arent
purely descriptive...but on the other hand...just might be viewed that way.
Things that simply have to go before an arbitrator or judge...to get a ruling,
not something you expect to be a purely adminstrative formality against clearly
abusive registration.

The other reason against first come first served (FCFS) is that it creates a need
to more micro-manage the portfolio of marks. Since FCFS applies...you probably
have to hear instantly if someone registers a domain that you think might
infringe, for fear of another party hearing first and filing first. To me its
seems this takes the concept of vigorously defending the mark a little far.
Thoughts?

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

> >From the "there should be a rule" department....
>
> An unprovided-for situation has come up twice now - where different
> complainants file complaints at different DRP's against the same domain name.
> In the previous situation, both complaints (against broad.com) were
> withdrawn, but in the current situation that does not appear to be likely.
> For reference, you may note the following two pending cases at WIPO and at
> CPR-ADR respectively:
>
> In this corner, we have WIPO with:
>
> D2002-0116
> ixp.com
> Compliance Review Pending
>
> And in this corner, we have CPR-ADR with:
>
> CPR 0205
> ixp.com
> Pending
>
> In the event the WIPO panel orders transfer to its complainant and the CPR
> panel orders transfer to its complainant, then do the two complainants take
> up pistols at dawn?  Arm wrestling?  Coin toss?
>
> Seriously, this puts the concerned registrar in a difficult position.
> Neither of the DRP's is required to provide any deference to the other, and
> they are both compelled to carry out their duties.  Obviously what will
> happen in the event of conflicting orders from the DRP's is that the
> registrar is very likely to end up being sued.  One of the objectives of the
> Policy was to insulate registrars from suit, which is why Phil Sbarbaro was
> instrumental in obtaining the registrar safe harbor of the ACPA.  If the
> registrar is put into the position of having to decide which DRP order to
> follow, then it undercuts the protection the Policy was intended to provide
> for registrars.
>
> A simple "first-filed" rule would suffice to fill this hole.

--
Dan Steinberg

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