RE: [nc-udrp] the UDRP task force - report

["Chicoine, Caroline G." <CCHICOINE@thompsoncoburn.com>]

Before you go any further, and with Katrina's polite and gentle nudge, I
plowed through them this morning and should have a summary to email everyone
before I leave the office today.  Please note that this is only of the DNSO
survey since as of earlier this year, Milton and I were off the Names
Council and the Names Council thought it was best that we step down as
Chairs.  Therefore someone will still need to go through the ICANN results
(there were 175 responses, and luckily ICANN was kind enough to provide us
with a statistical summary, a copy of which is attached).  The NC Chair
indicated to me that the NC was going to decide the new chair issue in
Bucharest, and I am following up with him to find out what happened and
where do we go from here.

I essentially reviewed everyone's charts and tried to summarize and include
some good quotes that I think will help us identify areas and ideas that
should be considered during the implementation phase.  I did note that there
were several responses that I did not receive Task Force members summaries
on, but it could very well be that I misplaced them and not that you all did
not turn them in. Let me check my list against what Katrina just emailed and
if I am still missing any, I will let you know.

In general, I identified the following POTENTIAL areas of reform and welcome
any other input.  There were not very many recommendations and that will be
our job as we move into the implementation phase.

Procedural Issues

(1)	Make the process of electronic versus paper filing of complaint and
exhibits more clear.
(2)	Improve searchability of decisions
(3)	Difficulty finding Registrar's rules that applied at the time the
Registrant registered the domain name
(4)	Improve accuracy, availability and searchability of Whois
information
(5)	Improve the effectuation of a transfer/cancellation order
(6)	Revisit who should select provider
(7)	Amendment of complaints under certain limited circumstances
(8)	Amendment of responses under certain limited circumstances
(9)	Transfer of case to another Provider under certain limited
circumstances
(10)	Uniformity of supplemental rules
(11)	Public accessibility of complaints and answers with certain
limitations/exceptions
(12)	Central availability of UDRP decisions
(13)	No refiling of UDRP involving same domain name and same registrant
except under certain limited circumstances.
(14)	Ability to withdraw complaint, but under certain circumstances and
with certain consequences (with prejudice, fine)
(15)	instituting some sort of penalty for a finding of reverse domain
name hijacking
(16)	impose quality control measures with respect to provider and
panelists
(17)	allow for partial refund of provider fee depending if and when a
case settles.

Substantive Issues
(1)	Interpretation of "identical or confusingly similar to"
(2)	Whether to include some affirmative defenses expressly in the policy
(3)	Mixed view on precedential value of decisions
(4)	Mixed view on ability to appeal
	(if so, some recommendations included same provider, but different
panelists; different provider; appealing party pays for appeal, but costs
for appellant if successful; level of deference with respect to findings of
fact=abuse of discretion and with respect to law=de novo)
(5)	changing "registration and use" to "registration or use" 
(6)	Allow pending trademark applications as a basis for establishing
rights in a mark provided use has occurred
(7)	no expansion of scope of disputes handled under UDRP except as set
forth above

I agree with all of you that there is more to be done here than simply
review survey results.  However, given the bottoms-up process we are under
within the ICANN framework, we had to start there and now build upon it.
While we will always be subject to criticism, we would surely have been
under fire if we had begin without such input.  I also agree with Katrina
that the surveys were helpful in spotting potential areas for reform and we
can certainly draw form the expertise of everyone in the group as well as
the articles written to date to work toward recommendations.  I personally
would prefer to start from a list of potential areas for reform that were
identified through the survey and the papers and not from recommendations in
any one individual's paper.  Of course, it is better to start somewhere than
nowhere at all, and I apologize for my lack of availability over the past
months due in most part to work and the ICANN restructuring.

I am grateful to Katrina for giving me the wake up call and hopefully our
new Chair(s) will be able to devote the time that I have not been able to
that will bring us back on track.



-----Original Message-----
From: Katrina Burchell [mailto:Katrina.Burchell@unilever.com]
Sent: Tuesday, July 09, 2002 11:54 AM
To: nc-udrp@dnso.org
Subject: RE: [nc-udrp] the UDRP task force - report


dear all,

We do have the summaries - which various people made before - all that
needs to be done now is to pull out from there some directions or focus
points which the task force think we should concentrate on.  The point
about the questionnaire answers was never to provide a statistical
argument (the UK saying comes into mind - lies, damn lies and statistics)
but simply to help us put forward some recommendations for how UDRP should
evolve in the future.  Please let's not re-open that debate.


attached are the summaries which everyone made of their responses which
they were allocated.  I hope I found them all since filing is not my best
skill!

Can I just underline again, the point of this is NOT to use these as a
definitive answer to what the recommendations should be - we need to take
into account all other aspects too (and yes to answer Milton and Michael's
questions I have read all of their papers and many others (in fact I
recently wrote a "trade mark owners response" to Dr Mueller's comments for
publication in a UK legal journal).  Let's try first to find a way of
listing what we think the issues should be and then make concrete
suggestions to ICANN and indeed all others involved in re-inventing UDRP
process as to how a workable and balanced system should operate.

Now, there were 56 questions in the questionnaire - Jim, Ethan and I all
have our heads out of the sand so we could share them out as follows

questions 1-18 Jim
questions 19- 37 Ethan
questions 38- 56 Katrina

(maths is not my strong point either!)  (Jim, Ethan - are you okay with
that?)


when we have summarised these we can put them in a list of things to
debate, everyone can comment on them and we can (hopefully) reach some
consensus on what the "task force view" is.....


some other suggestions...

I have all the other emails in connection with this and I will also go
through these to pick out any particular points which were raised before
so that they do not get lost.  
As suggested by Milton let's divide the Recommendations into Procedural
and Substantive - Ill add another heading to the draft report 
Ill be the keeper of the draft report and the list of things to debate and
add in amendments until such time as someone wants to take it over from me
- or you get fed up of my being bossy
I will also extract Michael Froomkin's recommendations from his paper and
put them into the list of things to debate

Katrina

UDRP Survey Tabulation.doc