Re: [ga-udrp] UDRP Questionnaire

[Andy Gardner <andy@navigator.co.nz>]

At 12:46 PM +1200 2/7/01, Joop Teernstra wrote:
>At 13:15 30/06/01 -0500, 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.
>
>I feel that the Registrar/Registrant contracts are to be modified,
>specifically to make it clear that Registrant's Names Rights are not
>automatically 'dead" , just because the fees have not been paid on time.
>Of course there should be clarity too for new registrants. Therefore, a
>registrar should not be allowed to "resell" a Domain Name until at least 6
>months have expired.

I disagree. If someone leases some specialised business equipment, and the
leasee fails to pay, the leasor has the right to recover that equipment and
re-lease it to whoever they please. 4 months down the track, the original
leasee cannot whine about forgetting to pay the lease, and take the
equipment away from the new leasee.

>
>>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.
>
>Correct. Especially when it concerns a Trademarked Name and the previous
>registrant has put the registrar on Notice that re-registering the name to
>another party would be considered as a contributory infringement.

Sorry. They have responsibility to police their own TM. Failing to pay an
annual fee comes under failure to police. And if the new leasee is NOT
using it in the same TM category, they should be out of luck.


>>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?
>
>Elementary principles of justice would say so. But there should be a clear
>time limit, or else the Name owner is never secure.

Tell that to the poor sods that have had names stolen from them by the
current process, with zero compensation. There are a number of cases where
the original owner deserves the name back, and compensation for lost
income. barcelona.com and bodacious-tats.com spring to mind as examples.


>>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).
>
>The Panelists should be allowed to look at all facts that are brought to
>their attention.
>Accusations must be accompanied by evidence in order to be taken into account.
>Evidence must be studied.

There are cases (IIRC) where the complainant lists other names owned by the
respondent that _happen_ to have TM strings in them, and the panel has
labeled them "habitual TM infringers" without taking into account the
actual use of the domain names.

>
>>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?
>
>It sounds grievously wrong. The Panel is a judging body, not a prosecuting
>body. In which case did this happen?

There are many cases where the panel has done "searches: on the Internet to
uncover and use evidence that was not presented by either of the parties.

Easiest way to uncover these is to do a search on "yahoo", "google" or
"altavista" on the ICANN case text search tool.

>>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.
>
>If the panel is biased against the respondent, an obligation to include all
>evidence subitted plus their comments on same would be the way to expose
>such bias.

Yes. And at present the panel ignores evidence that doesn't suit the result
they want (NAB is very bad at this) and you wouldn't even know from reading
the decisions.

>>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).
>
>This is a fundamental question that touches on the need to set up a
>respectable "cyberspace judiciary", witch an appeals process that can
>credibly assume jurisdiction over all trans-border Internet cases.
>Such a Judiciary would become a UN body. It will need a  Treaty and...It's
>gonna cost...  Goodbye simplified "rough justice by email", unless it would
>create a simplified process specifically to deal with DN disputes.
>WIPO, a UN treaty organization is NOT a judiciary organ by any stretch of
>the imagination.

You said it, baby. What about considering using national ombudsman
organisations to provide the service?

>
>>7. Should a provider be responsible for major drafting work regarding the
>>UDRP? (WIPO - just who's in charge here?)
>
>I don't really understand this question. Could you elaborate, Andy?

The UDRP is the creation of WIPO, the #1 provider. That's about as corrupt
as you can get.

>>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?
>
>It's a fine balance between the need for justice and the need for (new)
>Registrants to know where they stand.

If those new registrants obtained the name by fraudulent methods, they
don't really have any rights.

>>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?
>
>See above.
>
>>10. Should question 9 be retroactive dated back to the start of the UDRP?
>
>See above.
>
>Good questions, though.

Thanks, let's hope this UDRP mess can be cleaned up before too many more
innocent victims lose their shirts.

-- 
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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