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Re: [nc-udrp] DRAFT summary to date


well, it looks like Scott and Dan are at opposite ends of the spectrum on this
one.
What does everyone else think?  Hopefully there is some consensus on the subject?

"M. Scott Donahey" wrote:

> I think the paragraphs tend to predispose the people responding to a
> particular point of view and serve to limit free responses.  I believe that
> the questions standing alone are sufficient.
>
> Best regards.
>
> M. Scott Donahey
> Tomlinson Zisko Morosoli & Maser LLP
> 200 Page Mill Rd.
> Palo Alto, CA  94306
> Phone:  (650) 325-8666
> Fax:      (650) 324-1808
> msd@tzmm.com
> www.tzmm.com
>
> "This email message is for the sole use of the intended recipient(s) and may
> contain confidential and privileged information.  Any unauthorized review,
> use, disclosure or distribution is prohibited.  If you are not the intended
> recipient, please contact the sender by reply email and destroy all copies of
> the original message."
>
>  -----Original Message-----
> From:   synthesis@videotron.ca [mailto:synthesis@videotron.ca]
> Sent:   Monday, October 15, 2001 4:17 PM
> To:     MSD@tzmm.com
> Cc:     nc-udrp@dnso.org
> Subject:        Re: [nc-udrp] DRAFT summary to date
>
> why not take a stab at replacing my paragraphs with ones of your own? Believe
> me,
> I'm not married to the text but having done numerous surveys (including
> surveys
> of legal professionals) I have found it almost always helps to situate the
> reader
> first.
>
> "M. Scott Donahey" wrote:
>
> > I, for one, cannot agree to the editorial comments included in the
> > suggestions.  For example:
> > "Court-like
> > This section covers how much commenters [sic] feel the UDRP should resemble
> a
> > court.  Although court systems vary greatly with jurisdiction, there is a
> > common thread of expectations that come with the notion of a 'court' no
> > matter what the jurisdiction.  It should be noted that if everyone wishes
> the
> > UDRP to be a court, there is no real purpose in having one since courts
> > already exist."
> >
> > This neither represents my view, nor is it a fair characterization of the
> > questions.  Can we please have questions only, and dispense with the
> > editorials which purport to represent the views of the Task Force, when in
> > fact they do not.
> >
> > Best regards.
> >
> > M. Scott Donahey
> > Tomlinson Zisko Morosoli & Maser LLP
> > 200 Page Mill Rd.
> > Palo Alto, CA  94306
> > Phone:  (650) 325-8666
> > Fax:      (650) 324-1808
> > msd@tzmm.com
> > www.tzmm.com
> >
> > "This email message is for the sole use of the intended recipient(s) and
> may
> > contain confidential and privileged information.  Any unauthorized review,
> > use, disclosure or distribution is prohibited.  If you are not the intended
> > recipient, please contact the sender by reply email and destroy all copies
> of
> > the original message."
> >
> >  -----Original Message-----
> > From:   synthesis@videotron.ca [mailto:synthesis@videotron.ca]
> > Sent:   Sunday, October 14, 2001 10:00 PM
> > To:     nc-udrp@dnso.org
> > Subject:        [nc-udrp] DRAFT summary to date
> >
> >                                                        DRAFT
> >
> > I have taken the liberty of accumulating the questionnaire suggestions
> > posted to this list over the past few weeks. Since there was no
> > objection to the grouping I proposed, it forms the basic framework.  I
> > have added brief placeholder paragraphs to explain each section so that
> > people wishing to comment can be more aware of the context of each of
> > the questions.  There should probably be explanatory paragraphs for all
> > the bullet sections as well so that commenters need not be fluent in the
> > language of the law (in English) in order to respond to this
> > questionnaire. Please note that I don't consider any of the explanatory
> > paragraphs to be complete, merely drafts (as is all of the document for
> > that matter)
> >
> > I think this is the last time I will post this directly as a message,
> > but switch to word documents if no one has any objection.  In the
> > meantime, my apologies for the poor formatting.  Please let me know if I
> > have missed any questions/suggestions posted to date.
> >
> > Identification of commenter:
> > This section serves to place the comments received in context.  Please
> > put a check next to each category that applies to you.
> > ___  Constituency member (If so, please indicate which Constituency
> > _______________)
> > ___  Complainant
> > ___  Respondent
> > ___  Panelist (If so, please indicate which Provider
> > ______________________)
> > ___  Other (Please identify your primary interest in the UDRP
> > _____________________
> >
> > The remainder of the question both seek feedback on actual experiences,
> > and opinions on what could be improved.
> >
> > Court-like:
> > This section covers how much commenters feel the UDRP should resemble a
> > court.  Although court systems vary greatly with jurisdiction, there is
> > a common thread of expectations that come with the notion of a 'court'
> > no matter what the jurisdiction.  It should be noted that if everyone
> > wishes the UDRP to be a court, there is no real purpose in having one
> > since courts already exist.
> >
> >         Should some body be able to establish a rule of law that all
> > panelists would be required to follow?
> >         Have you used the option of staying the result of a UDRP
> > decision by filing a lawsuit in a pre-identified jurisdiction?
> >         If so, did this mechanism function effectively for you and why?
> >
> >    ·  procedural due process
> >         Should complainants be allowed to add newly discovered domain
> > names involving the same respondent to a complaint and why?
> >         Were there any difficulties in collecting or submitting proofs
> > or other materials in the process of dispute resolution?
> >         If any, please describe
> >
> >   · notice
> >         do you feel there is some need for improvement in notice
> > procedures? (new material added by DS)
> >         Have you been well informed of the course and schedule of
> > dispute resolution?
> >         If so, by whom?
> >
> >   · supplemental rules
> >         Do you believe the providers' supplemental rules should be
> > uniform and why?
> >         Do you feel there is some lack of procedural due process in
> > supplemental rules?
> >         Please indicate to which Provider(s) your comments apply  (new
> > material added by DS)
> >
> >   ·  ability to appeal
> >         Do you believe there should be an appeal process within the UDRP
> > and why?
> >         If yes, what would it look like?
> >         Should a complainant that loses a UDRP case before a single
> > panel be able to refile the case before a 3 person panel and why?
> >         Has your UDRP decision been challenged in national court and if
> > so, did the court decide the case differently than the UDRP panelists?
> >
> >    · publication/visibility of decisions
> >         Do you believe copies of the complaints and responses should be
> > publicly accessible and why?
> >
> >    · speed of decisions and the tradeoff between speed and depth
> >         Is it more important to you that process be inexpensive, or that
> > the process be thorough?
> >         Is it more important to you that the process be quick, or that
> > the process be thorough?
> >         If you are a panelist or provider, do you believe there is
> > sufficient time to review complaints and answers for sufficiency and
> > why?
> >         If not, how long would you recommend is needed?
> >
> > Visibility
> > In many jurisdictions, there are restrictions placed on lawyers and
> > courts. These restrictions serve to increase citizen's faith in the
> > judicial system and the legal profession. But like conflict-of-interest
> > guidelines for politicians, there sometimes needs to be some economy of
> > scale. For example in a small town, if the mayor happens to be the only
> > paving contractor....should the mayor be precluded from bidding on
> > paving Main Street?  In a large metropolitain area, there would be
> > (normally) more than one paving contractor so it is possible to bar the
> > mayor from bidding on contracts tha that the town council might be asked
> > to evaluate.
> >
> >         Should Providers be forbidden from advertising their services by
> > using statistics of their decisions, and why?
> > .       Should panelists be disqualified from representing parties
> > before the UDRP?
> >         Should panelists' law firms be disqualified from representing
> > parties before the UDRP?
> >         Should panelists (and their law firms) be disqualified from
> > representing parties in domain name disputes before national courts?
> >
> > Overall fairness
> > The following section focuses on the perceived fairness (or not ) of
> > both the process and the decisions rendered
> >
> >        Section 4(a) of the UDRP requires a complainant to show that the
> > domain name is confusingly similar
> >         to a trademark or service mark in which the complainant has
> > rights.
> >         Do you believe the issue of what is confusingly similar is being
> > decided properly by panelists and why
> >         (please include examples, if possible)?
> >         Under section 4(c)(iii), a respondent can respond to a UDRP
> > complain by showing that it is
> >         making a legitimate non-commercial or fair use of the domain
> > name,
> >         without intent for commercial gain to misleadingly  divert
> > consumers or tarnish the trademark or service mark at issue.
> >         Do you believe the issue of legitimate interests (such as in the
> > case of parody or comparative advertisement)
> >         is being decided properly by panelists and why (please include
> > examples, if possible)?
> >
> >    · reverse domain hijacking
> >         Do you believe reverse domain name hijacking is adequately dealt
> > with under the UDRP and why?
> >         If not, how would you propose the UDRP be revised in this
> > regard?
> >
> >    · fairness of decisions
> >          If you have been a defendant, was the process sufficiently
> > clear to you?
> >         Have you felt that the panelist/panelists were not impartial and
> > considerate in handling the case?
> >         Have you had any problem coming from language barrier or other
> > communication difficulties?
> >         If any, please describe.
> >
> >    · consistency
> >         Do you believe consistency of UDRP decisions among providers is
> > a problem, and why?
> >         If so, how do you propose to deal with such a problem?
> >
> >         If you have been an arbitrator, was there information in prior
> > decisions
> >         that you would have liked to have but was difficult to find?
> >
> >         should a pending trademark application have weight in UDRP or
> > not (new question added by me)
> >
> >    ·  issue of 'confusingly similar'
> >
> >    · issue of 'bad faith'
> >         Section 4(a)(iii) requires a complainant to show the domain name
> > has been registered AND is being used in bad faith?
> >         Do you believe both registration and use should be required or
> > just one of the two and why?
> >
> >         With respect to bad faith (see previous), do you believe that
> > the issue of bad faith is being decided properly by panelists and why?
> >
> >    · precedential value within UDRP
> >         DO you believe UDRP decisions should have precedential value for
> > future proceedings within the UDRP
> >         (outside is another issue entirely that is beyond the scope of
> > our ability to effect change)
> >
> >    · comparison to other dispute resolution proceedings
> >
> > Fees
> > This section covers the issues relating to fees charged to the parties.
> >
> >         Do you feel that the fees being charged by the providers are
> > appropriate?
> >         If not, how do you feel they should be changed?
> >         Do you feel that the fees being paid to the panelists are
> > appropriate?
> >         If not, how do you feel they should be changed?
> >         Should a respondent get a refund on the fee for a three person
> > panel requested by the complainant
> >         when the complainant drops the complaint and why and if so, what
> > type (i.e., full, partial)?
> >
> > Scope
> > This section address issues of scope, such as should the UDRP be
> > expanded to cover other situations? Or should it be decreased in scope.
> >
> >    · possible inclusion of geographic names, personal names, charter
> > violation
> >         Should "special" rules on the application of the  UDRP to
> > personal names be established and why?
> >         If yes, what would they look like?
> >         Should "special" rules on the application of the UDRP to
> > geographical names be established and why?
> >         If yes, what would they look like?
> >         Should the UDRP be expanded to deal with charter violations of
> > sponsored TLDs and why?
> >
> >         Are there instances where the UDRP applies today that you feel
> > it should not? (new question added by DS)
> >
> >         Do you believe the UDRP adequately deals with the issue of
> > generic trademarks and why (please include examples, if possible)?
> >
> > Other sources
> > This section covers other sources that commenters feel should be
> > investigated when researching proposed changes to the UDRP.
> >    · Dispute Resolution mechanisms developed under the new unsponsored
> > and sponsored TLDs.
> >         Are there mechanisms used/developed by  that you feel show merit
> > in some way?
> >
> >    · other ADR
> >         Have you used a domain name dispute resolution mechanism other
> > then ICANN's UDRP and if so,
> >         which one(s) and what did you like and dislike about it/them?
> >
> > --
> > Dan Steinberg
> >
> > SYNTHESIS:Law & Technology
> > 35, du Ravin  phone: (613) 794-5356
> > Chelsea, Quebec  fax:   (819) 827-4398
> > J9B 1N1                 e-mail:synthesis@videotron.ca
> >
> >  << File: ALTERNATIVE.HTM >>
>
> --
> Dan Steinberg
>
> SYNTHESIS:Law & Technology
> 35, du Ravin  phone: (613) 794-5356
> Chelsea, Quebec  fax:   (819) 827-4398
> J9B 1N1                 e-mail:synthesis@videotron.ca

--
Dan Steinberg

SYNTHESIS:Law & Technology
35, du Ravin  phone: (613) 794-5356
Chelsea, Quebec  fax:   (819) 827-4398
J9B 1N1                 e-mail:synthesis@videotron.ca




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