Re: [ga] Some other ideas about the questions... [ga-udrp] UDRP Questionnaire

["William S. Lovell" <wsl@cerebalaw.com>]

[Why isn't this in ga-udrp? Because WXW doesn't want to go there?
Does he make these rules?]

"Cade,Marilyn S - LGA" wrote:

> Bill, you do feel strongly about that subject!  :-)

Hi, Marilyn!

It's not so much that I "feel strongly" (although that, too!), but that it's
a legal opinion that I reached, and argued, in a Federal Court case.

> I know there are a lot of opinions on this topic, and I don't want to start
> a range war. I'm not commenting on whether a questionnaire is a good idea or
> not, but I agree that real verifiable facts are GOOD!

I've no objection myself to any questionnaire that people want to try out.
If it serves me no purpose, I'll ignore it; should it come up with information
I can use in what I'm doing (with or without comment on the structure of
the questionnaire -- I concur with some of those (Leah, I believe was one)
who had found major holes in the objectivity of the WHOIS one), I'll use it.

> I'm a little
> concerned that all questionnaires that might be distributed (I said this
> about the WHOIS questionnaire as well) should be considered probably
> qualitative input.  But that doesn't mean it isn't useful as background,
> etc.

I would indeed call every questionnaire seen so far as being qualitative.

> I'll try to add a question or perhaps some other ideas/clarifications to
> Milton's list.  They are in caps inserted into a copy of Milton's initial
> list with a comment in [] if needed.  I understand that Milton may not
> accept my friendly amendments :-) and could offer them as stand alone
> questions, should you prefer, Milton.

Go for it.

>
> A well qualified statistically valid study will [INSERT: "would" (sic)] take

> time and money, and
> expertise which should be neutral and verifiable. BUT, getting some ideas
> out via initial methods like this can be a great start to improving what is
> known, what is believed, what is understood, and what still mystical.

Concur wholeheartedly.  (Mostly mystical, methinks!)

(Down below I'm answering some of the questions, rather than posing or
editing questions, just to show how the questions as written might be
interpreted.)

>
> Marilyn
>
> > >001.    To what extent are panel decisions consistent with applicable
> lawS? [I thought it better to note that there are multiple laws, and of
> course, jurisdictional issues; I am not a lawyer, so Milton in particular
> should comment on whether the "s" is needed.]

I say the "s" is needed as  law(s).

>
> > >002.    Are decisions REGARDING CASES WITH SIMILAR CHARACTERISTICS/FACTS
> consistent across panelists and dispute resolution
> > >service providers,

Evidently not, with the amount of forum shopping going on.

> and if not, what can be done about it?

I'll hate myself for this, but the way that the courts enforce uniformity over,
say,
the regional circuit courts, is that there is an appeal to the U. S. Supreme
Court
which then defines standards for the lower appellate courts to follow.  Even
that
does not work too well -- some circuits (e.g., the 9th) make it a practice of
weaseling their way around U. S. Supreme Court decisions -- they read the ones
they want to read and ignore the rest.

> IS INFORMATION
> AVAILABLE IN AGGREGATE FORM FROM EACH OF THE PROVIDERS WHICH WOULD ALLOW
> SUCH AN ANALYSIS?

Is that a poll type question? Isn't it a request for information?

>
> > >003.    Is the potential for abuse of claimed common law rights so great
> that
> > >the policy should be limited to registered marks? [THIS IS A COMMENT:
> BOTH THE U.S. AND THE UK, TO MY KNOWLEDGE ACCEPT COMMON LAW RIGHTS.]

Here is why the "s" on "law(s)" is needed -- practice differs, such that in the
U.S. you gain trademark
rights by use, and (contrary to the very prevalent conception otherwise), these
"common law" rights
are fully as good and fully as enforceable as those that also have a
registration. The registration itself,
also contrary to notions long promulgated erroneously by Network Solutions and
its successors
(including ICANN), imparts no substantive rights whatever, but only procedural
advantages.  By
contrast, in Europe you can get a trademark registration, and have rights
therefrom, even though
the mark has never been used.  If there were to be any UDRP at all (which I
oppose), it should be
effective with respect to the law of the country in which the mark is claimed.
A case "tried" (quite
a laughable use of the term, really) in Europe with regard to a U.S. common law
right should
recognize that common law right.  (And here, of course, is one of the major
problems: I would
wager that most of those on these panels are techie Internet gurus who don't
know beans about
any trademark law anywhere.)

>
> > >004.    Should generic names, geographical names, initials and numbers be
> > >protected from claims by any trademark or name rights' owner, regardless
> of
> > >the owner's fame? AND IF SO, IS THE CONSISTENT WITH APPLICABLE LAWS?

Follow the law of the jurisdiction wherein claimed.

>
> > >005.    Is the high respondent default rate due to a lack of real and
> timely
> > >notice of complaints and/or a lack of time to respond?

Good question

> IS INFORMATION
> AVAILABLE, IN ADDITION, ABOUT HOW MANY INCIDENTS OF INCOMPLETE OR INACCURATE
> REGISTRATION INFORMATION HAVE HINDERED NOTIFICATION?

Isn't that again a request for information rather than an opinion?

> > >006.    Do complainants and respondents have parity in post-UDRP access
> to
> > >the courts?

How would most people be able to answer this?

> > >007.    Should the ability to challenge a name under the UDRP expire
> after a
> > >single registrant has held the name for a specified period of time?

Good question

> > >008.     Should there be an internal review mechanism (such as an appeal
> > >panel drawn from all the Providers) to overturn clearly erroneous
> decisions
> > >without resorting to courts?

Separate these two, of course.

> IF SO, WHAT IS THE PROCESS TO DETERMINE
> "CLEARLY ERRONEOUS DECISIONS" ACROSS EACH OF THE PROVIDERS?
> > >009.    Does Complainant selection of the resolution service provider
> lead to
> > >"forum shopping" that tends to bias decisions against Respondents?
> > >010.    Should registrars, rather than complainants, pre-select the
> > >Provider(s) to whom all disputes over names registered with them will be
> > >referred? IF SO, SINCE LIABILITY WILL ACCOMPANY SUCH A ROLE,

No poll should express legal conclusions like this.

Nuff said. :-)

Bill Lovell

> WHAT KIND OF
> LIABILITY SHOULD THE REGISTRARS ASSUME?  DAMAGES, COSTS, ETC.?
> > >011.    Do policies for accrediting or de-accrediting dispute resolution
> > >service providers need to be specified in greater detail? WOULD IT BE
> USEFUL TO CONSIDER A STANDARD SET OF CRITERIA FOR QUALIFICATIONS FOR
> PANELISTS WHICH ALL PROVIDERS MUST MEET TO BE ICANN CERTIFIED? Are any
> providers'
> > >supplemental rules inconsistent with either due process and/or the ICANN
> > >rules?
> > >012.    Should the UDRP be amended to enable respondents to initiate a
> > >"declaratory judgment" regarding their "rights and legitimate interests"
> in a
> > >name?
>
> -----Original Message-----
> From: William S. Lovell [mailto:wsl@cerebalaw.com]
> Sent: Saturday, June 30, 2001 2:24 PM
> To: Jefsey Morfin
> Cc: ga@dnso.org
> Subject: Re: [ga] Re: [ga-udrp] UDRP Questionnaire
>
> No one should use the UDRP  -- it's a sham and a fraud.
>
> Bill Lovell
>
> Jefsey Morfin wrote:
>
> > Should non legacy TLD use the UDRP?
> >
> > If you say not, it means that the money advantage obtained by NSI from
> this
> > system is more important than TM Holders rights.
> >
> > If you say yes, it means they should participate to the debate as such...
> >
> > Jefsey
> >
> > On 10:04 30/06/01, DannyYounger@cs.com said:
> > >The questions cited below have been put forth by Milton Mueller, and seem
> to
> > >be a good starting point.
> > >http://www.dnso.org/clubpublic/tor-udrp/Arc00/bin00000.bin
> > >
> > >001.    To what extent are panel decisions consistent with applicable
> law?
> > >002.    Are decisions consistent across panelists and dispute resolution
> > >service providers, and if not, what can be done about it?
> > >003.    Is the potential for abuse of claimed common law rights so great
> that
> > >the policy should be limited to registered marks?
> > >004.    Should generic names, geographical names, initials and numbers be
> > >protected from claims by any trademark or name rights' owner, regardless
> of
> > >the owner's fame?
> > >005.    Is the high respondent default rate due to a lack of real and
> timely
> > >notice of complaints and/or a lack of time to respond?
> > >006.    Do complainants and respondents have parity in post-UDRP access
> to
> > >the courts?
> > >007.    Should the ability to challenge a name under the UDRP expire
> after a
> > >single registrant has held the name for a specified period of time?
> > >008.     Should there be an internal review mechanism (such as an appeal
> > >panel drawn from all the Providers) to overturn clearly erroneous
> decisions
> > >without resorting to courts?
> > >009.    Does Complainant selection of the resolution service provider
> lead to
> > >"forum shopping" that tends to bias decisions against Respondents?
> > >010.    Should registrars, rather than complainants, pre-select the
> > >Provider(s) to whom all disputes over names registered with them will be
> > >referred?
> > >011.    Do policies for accrediting or de-accrediting dispute resolution
> > >service providers need to be specified in greater detail? Are any
> providers'
> > >supplemental rules inconsistent with either due process and/or the ICANN
> > >rules?
> > >012.    Should the UDRP be amended to enable respondents to initiate a
> > >"declaratory judgment" regarding their "rights and legitimate interests"
> in a
> > >name?
> > >
> > >What other questions should be added to this list?
> > >--
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> to the reader may possibly be explained at:
> "WHAT IS": http://whatis.techtarget.com/
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>
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"WHAT IS": http://whatis.techtarget.com/
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