Re: [ga-udrp] UDRP Questionnaire

["NameCritic" <watch-dog@inreach.com>]

I have a question. Since the Respondant doesn't get to pick the Arbitration
Service and is forced to agree to arbitration to get a domain name, why
wouldn't he/she be able to sue the Panelist/s themselves for malpractice or
similar complaint?

In most arbitration processes both parties have a say in what service is
used and both have to agree on who will preside and I assume this would
eliminate the possibility of suing the Panelists. But since that is not the
case here . . . ?

Chris McElroy aka NameCritic

----- Original Message -----
From: "Andy Gardner" <andy@navigator.co.nz>
To: <ga-udrp@dnso.org>
Sent: Sunday, July 01, 2001 8:59 PM
Subject: Re: [ga-udrp] UDRP Questionnaire


> 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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