RE: [ga] ICANN benefits

["Russ Smith" <russ@consumer.net>]

>If you mean that the UDRP provides ADDITIONAL benefits to trademark
>holders, well, that becomes a finer point of debate.

Court cases - nothing has changed.  A TM holder can file the same cases now
as before the UDRP.

Domains involved -  used to be NSI's interpretation of "exact match."  Now
we have "confusingly similar."  Domains like
guinness-beer-really-really-sucks.com have been found to be "confusingly
similar."  Advantage to TM holder.

Action taken - Previously domains put on hold.  Owner or TM holder needs to
sue to take control.  Under the UDRP complainant gets transfer if they win
but owner gets to keep control if they win.  Usually advantage to TM holder
except cases where domain holder wins and keeps control.  (for cancellations
the advantage goes to me or John Berryhill.  See www.Fibershield.net and
http://www.nokiagirls.com)

> As has been noted frequently, the UDRP needs enhancement.  But let's not
> attribute more precedent to it or ICANN than is valid.

ICANN instituted and manages the UDRP and is fully responsible for it.  The
problem here is that ICANN instituted the UDRP and then essentially threw
the problem over the fence to the providers.  The providers have a
substantial financial interest in how the UDRP plays out and ICANN is seen
as not taking the responsibility for the management of the program and at
least attempting to fix the known problems which are outlined in the Rough
Justice report at http://dcc.syr.edu/roughjustice.htm.  Even Francis Gurry
of WIPO admitted some of the decisions are bad.  The early decisions
involving crew.com and esquire.com opened up a flood of claims.

The complaints involve:

-No standards in choosing who will become an arbitrator
-No training to ensure arbitrators understand the rules, the scope of the
UDRP (narrow class of abusive registrations
http://www.icann.org/udrp/udrp-second-staff-report-24oct99.htm), and TM law.
-No standards in how arbitrators are chosen for a specific case
-No policing by ICANN of the supplemental rules instituted by the providers
to ensure they mesh with the ICANN rules (for instance see
http://www.arbforum.com/domains/decisions/95344.htm)
-There have been a variety of complaints that TM holders are treated
differently than domain holder.  For an extreme example see
http://www.arbforum.com/domains/decisions/94867.htm versus
http://arbiter.wipo.int/domains/decisions/html/2000/d2000-1619.html.
-Registrars are not always following timelines and guidelines set forth in
the UDRP rules.

If you want to see a pattern of what is happening I suggest going to each
provider and reading the decisions in chronological order.  If eResolution
were hearing all the cases it would be pretty fair.  However, as one TM
lawyer recently commented on the INTA.org list, they probably can't support
a full time staff because they only get a few cases per month.

ICANN has no (transparent) process for dealing with the complaints or
updating the rules/procedures for identified problems of the UDRP program
which they initiated and are now supposed to be managing.  To make things
worse they have not initiated ANY (transparent) program to take care of the
domains that are deleted accidentally/mistakenly.

Russ Smith
http://consumer.net

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