Re: [ga-udrp] UDRP Questionnaire

[Jeff Williams <jwkckid1@ix.netcom.com>]

Andy and all,

  This is great question.  Well done Andy!  A follow-up question might
be:

a.) Can the terms of the register agreement be changed and applied
     to any registrant or any registrants Domain Name during the
     term of that registrants registration?

Andy Gardner wrote:

> Further questions:
>
> 1. Should a complainants rights under the UDRP exceed/override the terms it
> agreed to under the Registrar/Registrant contract?
>
> This question is based on many cases where a complainant was a prior owner
> of the domain in question and although clearly without rights in their
> registration contract (all rights expire if annual fee is not paid), the
> panelist has taken the name away from the new registrant and awarded it to
> the previous owner - totally destroying the new registrants business plans
> and investment in the name - with zero compensation - even if the name was
> used for an entirely different business. Sometimes this has taken place 6
> months or more after the name was re-registered.
>
> This is particularly crazy considering the new registration system gives no
> information regarding the name's history at registration time, and the
> registration agreements do not warn that prior registrants may have a
> perpetual claim on the name.
>
> 2. Should the complainant or respondent have the right to re-open the case
> at a different provider if they can prove that the original panel ignored
> or modified evidence mentioned in the decision, in order to match the
> decision they wanted to end up at?
>
> 3. Should panelists be allowed to make arbitrary decisions on other accused
> TM infringements of a respondent without any study of facts of those
> matters, in order to allow them to brand the respondent as a habitual TM
> infringer - or should such evidence be deemed inadmissible when presented
> by the complainant (or bought into evidence by the panel themselves).
>
> Which leads to:
>
> 4. Should panelists be allowed to bring evidence into the proceeding
> themselves and make decisions based on that evidence, particularly if the
> parties are not given the opportunity to be heard regarding it?
>
> 5. Should panelists be required to include and comment on all evidence
> submitted by the parties when writing up their decision? (Panelists
> currently pick out the evidence that suits their decision and ignores
> whatever evidence that would cause any problems. This can be very damaging
> to a respondent as the finding can be used against them in further UDRP
> cases, and the future panelists may not have access to the original
> complaint and response.
>
> 6. Should ICANN be forced to adopt a hands-on approach to the management of
> the UDRP process, on a case-by-case basis? (Currently all complaints to
> ICANN regarding particular cases appears to be ignored - non enforcement of
> the ICANN rules regarding the performance and actions of providers).
>
> 7. Should a provider be responsible for major drafting work regarding the
> UDRP? (WIPO - just who's in charge here?)
>
> 8. If serious flaws in the current UDRP process are exposed and a new
> system put in place, should prior cases be allowed to be re-heard under the
> new rules?
>
> 9. In cases where it can be shown (and is agreed by an independent review
> panel) that the panel acted outside the current UDRP rules, should the
> losing party be allowed to have the case re-opened and examined by a
> panelist of their choice at the cost of the original provider?
>
> 10. Should question 9 be retroactive dated back to the start of the UDRP?
>
> That's all for now, I'm sure I'll think of some more later.
>
> --
> Andrew P. Gardner
> barcelona.com stolen, stmoritz.com stays. What's uniform about the UDRP?
> We could ask ICANN to send WIPO a clue, but do they have any to spare?
> Get active: http://www.tldlobby.com
> --
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Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 118k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1800 x1894 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208


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