Re: [nc-udrp] Can we get to work, please?

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

I agree that procedural reform should be our main target, and wrote an
article chock-full of suggestions -- some influenced by listening to none 
less than John Berryhill.

On the substantive front, I can only imagine two issues on which there
might (maybe?) be consensus:

As several members of this group can testify from personal experience, the
UDRP was not intended by its drafters to cover personal names unless these
were trade or service marks.  A number of UDRP decisions either
misunderstand this, ignore it, or move heaven and earth to find a common
law trademark in circumstances in which it's unlikely a court would find
one.  This brings the entire process into disrepute.  A statement
reminding arbitrators of the original intention of the policy would do
some good.

Second - and straddling substance and procedure - experience has shown
that the UDRP's quick paper procedure works less well when when a common
law mark is being alleged than it does when the case is based on a
registered mark.  I wonder if some sort of heightened pleading requirement
- or at least guidance as to quantum of proof - should not be required
when the basis of a complaint is a common law mark?


On Fri, 6 Dec 2002, John Berryhill Ph.D. J.D. wrote:

> > The point, my friends, is that we have to start discussing
> > and proposing IDEAS about how the UDRP should be
> > changed.
> 
> ....or if it needs change at all.  Who knows, we might agree that it is best
> left the way it is, but we have no idea what the members of this task force
> believe, based on the collective navel gazing effort thus far.
> 
> We have quite a few experts here, and I really don't know if anyone shares
> the view that there is probably very little "need" for much substantive
> change, but there are some recurring procedural traps for the unwary that
> might be made simpler.
> 
> One the very simple question of whether 'cancellation' - the best way to
> embarass novices - could be deleted as an outcome, I have no idea what the
> range of opinion of this august panel of experts might even be.  Does the
> internet need more of these: http://www.fibershield.net/,
> http://www.lladro-retired.com/, http://www.planetrxx.com/ .  I got tired of
> renewing some of the ones in the collection, because I thought by now the
> point had been made.
> 
> I used to say that the UDRP had three outcomes - Complaint Denied, Transfer,
> and Let Berryhill Have The Domain Name, because for two years running, those
> were the only three results.  Folks, this is a no-brainer of a question.
> Cancellation lets the respondent re-register the domain name, and that has in
> fact happened with some of the cancelled names.  We have complainants that
> pay $1500 to get a decision in their favor, and the next day the same idiot
> has the domain name.
> 
> Cancellation also introduces a technical artifact into the (pending) deletes
> policy that is simply not needed, because as an outcome cancellation is dumb.
> I have spoken with several members of the WIPO I process, who have told me
> that most of them knew it was dumb, but gave up on trying to disabuse others
> of the notion that a "cancelled" domain name would go off to some domain name
> Valhalla, never to be seen again.
> 
> We also have Mr. Kerans of the NAF who, as wonderful a person he might be,
> repeatedly uses "cancellation" sua sponte when he thinks that *neither* party
> has a right to the domain name.
> 
> This is just one example, but based on our collective review of the survey
> results, the articles, and the expertise for which we were all selected, it
> doesn't seem that hard to make a collective "wish list" of proposed reforms
> from all quarters within the scope of the TOR, and take a straw poll here of
> things that are "right out", "worth discussing", and "apparent consensus and
> worth reccomending" and fly with that.
> 
> I believe that there is a broad consensus that the UDRP is a good thing.  I
> also believe, from the perspective of domain registrations that the UDRP in
> principle is a good thing for domain registrants.  Domain registrants have
> the option of initiating their own litigation if they want, and I have
> represented and advised registrants who have done just that.  But in the
> absence of the UDRP domain registrants are, in general, at a serious
> disadvantage if the only option for TM claimant is to file costly litigation
> in remote venues.  So, despite my "playful" (and considered "obnoxious" by
> some, I know) style of highlighting problems, please don't paint me into the
> "barbarian at the gate" corner into which some want to needlessly divide the
> world.  I believe there are some changes that can make the UDRP more fair,
> but at the present time I can count on maybe three fingers the number of TF
> members who believe *any* change to the UDRP is warranted.
> 
> Having now recovered from a recent injury, I promise not to bite.  I also
> note that my input here will be informed by the views of other attorneys,
> such as Mr. Steve Sturgeon (http://www.domain-name-dispute-lawyers.net) and
> Mr. Ari Goldberger (www.esqwire.com) who also have extensive experience from
> the perspective of domain name registrants.  Collectively, we are the folks
> who are a complainant's worst nightmare in UDRP disputes, but we all agree
> that the UDRP is preferable to litigation for most domain name registrants,
> and we are optimistic that this TF just might suggest reforms that would make
> the policy better for all participants.
> 
> We have our list, if you have your list, then let's compare notes.
> 
> John
> 
> 

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