Re: [nc-udrp] Moving Forward

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

On Sun, 9 Feb 2003, Ethan Katsh wrote:

>          Michael, could you post the URL for the proposals?
> 

I was referring to my summary of my article at 

http://personal.law.miami.edu/~froomkin/articles/udrp.pdf

As noted in my summary posted to this list, I recommend the seventeen
following changes in the *procedural* parts of the UDRP:

1. The UDRP should be changed to remove any incentive for arbitration
providers to be "plaintiff-friendly," and to equalize both sides'
influence on the selection of the arbitrators.

2. Plausible claims of arbitration-provider bias need an appropriate
forum. 

3. Parties need enhanced means to get information about arbitrators'
possible conflicts of interest and to act on that information. 

4. Complainants should be required to post a small bond that would be
forfeited in the event of a finding that the complaint was brought in bad
faith and constitutes an abuse of the administrative proceeding. 

5. Consumers should have access to an authoritative copy of the UDRP in
their national language.

6. Providers' methods of recruiting and assigning arbitrators should be
open and auditable. Some thought should be given to the issues of panelist
training, qualification, and selection, especially with an eye towards
ensuring a broad pool of arbitrators, and removing opportunities for
provider manipulation of panelist selection. 

7. Complaints and replies should be published online along with decisions
in order to increase confidence in the justice of outcomes, subject to
redaction of confidential business information which should be segregated
in limited exhibits. Providers should be required to archive all briefs
and exhibits for several years, and to make them available after a
reasonable time to researchers and others who want to study them, with
some provision for redaction of the most sensitive personal and financial
data. 

8. UDRP Arbitrators should be instructed even more explicitly as
to what constitutes meeting the complainant's burden of proof.

9. The UDRP should specify that neither settlement negotiations nor
solicited offers of sale constitute evidence of registrant bad faith. 

10.  Either the UDRP should spell out in some detail what sort of evidence
will be considered proof of the existence of a common law mark, or the
UDRP should be limited to registered marks. 

11.  UDRP decisions should be final within the system -- any complaint
that elicits a reply should not be subject to a "dismissal without
prejudice" that invites complainants to try and try again.

12. The UDRP should not allow parties even to attempt to undermine a final
decision on the merits by a court of competent jurisdiction. 

13.  The rules should require actual notice or greater efforts reasonably
calculated to achieve actual notice, especially in countries with inferior
postal systems. 

14. Given that many respondents are consumers or small businesses, the
minimum time to respond to a complaint should be increased to sixty days
to reflect the amount of time it takes to locate and brief counsel,
collect facts, and write a brief to which no amendments are permitted. 

15. Complainants should be penalized for filing lengthy attachments and
exhibits in an attempt to evade word limits, and for submitting most
non-digitized material. Either behavior should entitle *respondents* to
extra time on a graduated scale depending on the severity of the offense.

16. Providers need to be prevented from writing supplemental rules that
violate the UDRP or unfairly favor either party. Parties need a means to
challenge supplemental rules, and ICANN or some other party needs to be
ready to decide these challenges quickly.

17.  Procedures need to be created to help unrepresented parties represent
themselves more effectively, and especially to help them select an
arbitrator for three member panels. 


> 
> At 05:50 PM 2/6/2003 -0500, Michael Froomkin - U.Miami School of Law wrote:
> 
> >I've posted a list of proposals.  Should I interpret the silence as
> >assent?
> >
> >
> >On Thu, 6 Feb 2003, John Berryhill Ph.D. J.D. wrote:
> >
> > > > what our timetable is for
> > > > discussing the issues we need to discuss.
> > >
> > > Ethan,
> > >
> > > If there is anything you feel a need to discuss, then no one is preventing
> > > you from discussing it.
> > >
> > > Discuss away.
> > >
> > > John
> > >
> > >
> > >
> >
> >--
> >                 Please visit http://www.icannwatch.org
> >A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
> >U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> >+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
> >                         -->It's warm here.<--
> 
> 

-- 
		Please visit http://www.icannwatch.org
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                        -->It's warm here.<--