[nc-udrp] DRAFT II summary to date

[Dan Steinberg <synthesis@videotron.ca>]

DRAFT II

  .
 

As per the consensus, I have removed all editorial content.  This draft incorporates all comments received by 4PM eastern time 2001-10-17. I will keep on re-issuing drafts as long as it appears we are getting somewhere. We have a deadline to meet.
 

A.    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.

B.    Court-like:

        Should some body with oversight over all UDRP proceedings 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?
        If you have been a defendant and you did respond to the complaint, were you represented by counsel? If not, why not?

   ·  procedural due process
        Should the selection of a provider continue to be the exclusive right of the complainant?
        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 a need for improvement in notice procedures?
        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

  ·  res judicata and the ability to appeal
        under what circumstances (if any) should a party be able to re-file a new complaint on the same domain name?

        Has your UDRP decision been challenged in national court and if so, did the court decide the case differently than the UDRP panelists?

        do you think there should be the ability to appeal? if not skip this section entirely

        Do you believe there should be an appeal process within the UDRP and why?
        If yes, what would it look like? and how should it be financed?

        do you feel that complainants and respondents should have equal right to appeal decisions rendered?
        If not, why? (and skip the rest of the questions in this section)
        should all appeals  to a decision rendered by single-member panel go to a 3-member panel? if not, where should they go?
        where should appeals to a decision rendered in first instance by a 3-member panel go?
        if you support the notion of appeals to decsions rendered by a one-member panel going to a 3-member panel,
        do you feel there should any other  appeal possible after?

   · publication/visibility of the process and decisions
        Do you believe copies of the complaints and responses should be publicly accessible and why?
        SHOULD THIS BE DURING OR ONLY AFTER THE DECISION?
        Should decisions be in the public domain or should they be the intellectual property of the providers.
        If you believe them to intelletual property, please skip the remaing questions on publication/visibility
        DO YOU BELIEVE THAT THE DECISIONS SHOULD BE AVAILABLE IN ONE CENTRAL PLACE
        ACCESSIBLE FOR PANELISTS AND PUBLIC?
 
 

   · 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 you are not a panelist or provider, please answer the following question instead:
        Do you believe there is sufficient time to review complaints and answers for sufficiency?
        All commenters should answer the following question (as applicable)
        If not, how long would you recommend is needed?

C.    Visibility

        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?
        ARE YOU AWARE OF THE EXPERIENCE OR RELEVANCE OF PANELISTS GENERALLY AND
        HOW THEY ARE APPOINTED AND IF NOT ARE YOU CONCERNED ABOUT THIS?

D    Overall fairness

         If you have been a defendant and did not respond to the complaint, why did you decide not to respond?

       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?
        HAVE YOU HAD EXPRIENCE OF OR BEEN INVOLVED IN REVERSE HIJACKING AND WHAT
        WAS YOUR EXPERIENCE OF UDRP IN THIS PROCESS?

   · 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'

        Can someone come up with question(s) here?

   · 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

E.    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)?

F.    Scope

        HAVE YOU EVER DECIDED AGAINST TAKING A COMPLAINT TO UDRP AND IF SO WHY?

        DO YOU BELIEVE IT WOULD BE USEFUL IF UDRP PROVIDED A MEDIATION SERVICE OR
        A COOLING OFF PERIOD TO ALLOW PARTIES TO DISCUSS THE DISPUTE AND REACH AN
        AMICABLE SOLUTION?

   · 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 THINK THAT UDRP SHOULD BE UNIFORM ACROSS GTLDS AND CCTLDS AND THAT
        COMPLAINTS AGAINST BOTH DOMAIN NAME LEVELS CAN BE MADE IN ONE APPLICATION?

        Do you believe the UDRP adequately deals with the issue of generic trademarks and why (please include examples, if possible)?

G. Other sources

   · 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?

H.  Other

        In what way, other than the questions above, do you feel the process could be improved. Any further comments are appreciated:
 

===========================================================
The following para is from Katrina Burchell. There are no questions reflecting the materiel yet, but I figured an easy way to hang on to reference material was to keep brief summaries at the bottom of the e-mail until we move to Word or html.
The .uk dispute resolution procedure
http://www.nominet.org.uk/ref/drs-procedure.html has two main differences
to the UDRP.  The first is that the decision reached by an "expert" can be
appealed to a panel (of three) and the second is that there is a process
for mediation prior to the formal procedure starting. Nominet will select
the expert and the panel. At the moment we dont have any real experience
of the expert panellists because they havent been appointed.  However we
do have some expereience of the mediation working because that system
existed prior to this new one.  Nominet always said that they thought
mediation was a good thing as it usually ended in parties reaching
agreement voluntarily.  In trade mark law in some countries in Europe
there is also what is called a cooling off period.  Care needs to be taken
here with this approach because mediation or cooling off is not
necessarily in the favour of the smaller or weaker party who could feel
bullied into taking a solution rather than risking the costs of a more
formal procedure.  The other difference of course with Nominet is that the
procedure is handled by Nominet themselves rather than third parties such
as WIPO or NAF.  Whether this is sufficiently independent is a matter of
opinion.  What is useful here is that Nominet being the Registry also have
the power to implement the expert decisions ie transfer them or cancel
them which seems to be missing from UDRP.
 

--
Dan Steinberg

SYNTHESIS:Law & Technology
35, du Ravin  phone: (613) 794-5356
Chelsea, Quebec  fax:   (819) 827-4398
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