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Re: [nc-udrp] ICANN LA Meeting


ooops! I sent DRAFT II out mere seconds before this came in.  Guess
there's material for Draft III coming in already...


"J. Scott Evans" wrote:

> Dear All: First, please allow me to personally thank Dan for taking
> the laboring oar in this endeavor.  Second, allow me to thank each and
> everyone for their fine comments with regard to the proposed draft
> questionnaire. I have had a chance to review Dan's draft from earlier
> this week and I have listed my comments below: 1.  I must agree with
> the consensus position that there should be no categorization or
> commentary regard the questions.  I believe the questions should
> simply be listed on the questionnaire. 2.  I also agree with Tim that
> some mechanism needs to be implemented so that once a survey
> participant chooses a category, the questionnaire then addresses
> issues pertinent to the participant.  In this regard, I wonder whether
> we could have the first question regarding the identification of the
> participant then cue the form that would appear with questions geared
> toward that participant (ie, provider, complainant or respondent). 3.
> With regard to the first question, "Should some body be able to
> establish a rule of law that all panelists would be required to
> follow?"  I think this question should be removed.  The policy is the
> uniform rule applied by all panelist.  The interpretation of this
> policy may vary, but the rule is uniform.  As for other variances
> which may occur, I believe there are sufficient questions set forth in
> the survey that cover these issues. 4.  With regard to the second and
> third questions, "Have you used the option of staying the result of a
> UDRP action by filing a lawsuit in a pre-identified jurisdiction?"
> This question is cumbersome.  Why not simply ask, "Have you ever
> challenged a UDRP decision? Why or Why not?" 5.  With regard to the
> fourth question about adding additional domain names to the complaint,
> why not simply ask whether complainants should be allowed to amend
> their complaints and why or why not?  In my opinion, the question as
> posed is emotionally charged. 6.  With regard to the sixth question
> about notice procedures, I suggest we simply ask "How would you
> improve the notice procedures contained in the UDRP?"  This question
> is more open ended and I believe it will solicit more creative
> responses from the participants. 7.  With regard to the seventh
> question about supplemental rules, I suggest rewording the question to
> read, "Should the UDRP providers be required to have uniform
> supplemental rules?  Why or why not?" 8.  I do not think we should ask
> the eighth question regarding specific providers.  The why or why not
> portion of the previous question should be sufficient to solicit an
> explanation from a participant that has a particular ax to grind
> concerning an individual provider. 9.  With regard to the ninth
> question concerning an appeal process, I believe this question should
> be modified to ask whether the participant believes there should be an
> out of court appeal available within the UDRP.  I do not think we need
> a why.  I think the "why" is implied (i.e., parities unsatisfied with
> the initial decision should have the benefit of a second review of the
> decision).  The better question is asked in the second part of this
> question (i.e., "How should it look?").  I also think we might
> consider asking which standard should be used on appeal (e.g., abuse
> of discretion or de novo). 10.  With regard to complainants that
> refile to 3 member panels, I agree with Tim that this is not an
> "appeal" issue, but rather an issue of what, if any, preclusive effect
> prior UDRP decisions involving the same parties and the same domain
> name(s) should have.  Perhaps a better way to get to this issue is to
> ask whether any affirmative defense should be available under the UDRP
> and, if so, what those would be. 11.  With regard to the question
> concerning a challenge in a national court, I believe this issue is
> covered by the earlier question listed under my number 4 above.  In
> addition, I believe the current form of the question begs the question
> and should not remain in the survey. 12.  As for the question
> concerning speed vs. cost, I believe the current form of this section
> will prejudice the results.  I would feel more comfortable with either
> providing five blanks and asking them to rank the most important
> qualities of dispute resolutions mechanisms and/or reasons for the
> UDRP.  Alternatively, my preferred remedy is for our group to come to
> consensus on about five or six qualities of dispute resolution and
> have the participants rank these qualities in the order of
> importance.  We might even ask a follow question of how the UDRP might
> be improved to meet their ranked list. 13.  I see no point in asking
> the question about how providers should advertise.  I am not sure that
> ICANN legally has a right to govern the method, mode or content of a
> providers advertising.  I think community pressure is a far better
> tool for making providers toll the line on this issue.  Let's not ask
> a question that we cannot securely give ICANN a recommendation which
> they can then implement. 14.  While it may be important to ask the two
> questions regarding disqualification (i.e., panelist law firms in UDRP
> actions and panelists before National courts), here again I think the
> questions are not going to give us any information that is
> worthwhile.  Any disqualification of panelists law firms or panelist
> from national courts would work a very harsh remedy on the UDRP.  Most
> panelist barely make any money on the UDRP actions and would simply
> pull out of the process.  Lastly, I do not think ICANN can put into
> place any policy that would disqualify panelist from appearing before
> a court.  This smacks of restraint of trade.  Most jurisdictions won't
> even allow attorneys to enter non-compete agreements. 15.  With regard
> to the question concerning reverse domain name hijacking, I believe
> this question should be revised to read "How should the UDRP deal with
> reverse domain name hijacking?"  Here again, I believe this type of
> question will solicit more creative answers.  In addition, I think the
> current form of the question begs the question. 16.  With regard to
> the issue of fairness, why is the first question specific to
> respondents?  Why not ask, "If you have ever been a party to a UDRP
> proceeding, was the process sufficiently clear to you?  Why or why
> not?"  The question as currently drafted seems to presume that only
> respondents are confused by the process. 17.  With regard to the
> question concerning the impartiality of the panel/panelist, let's ask
> "Did you feel the panel/panelist that heard your case were impartial
> and considerate?" 18.  Same revision to the next question on language,
> let's ask "Did you feel . . . " 19.  With regard to the question
> concerning consistency of decisions, I suggest we remove "among
> providers" and simply ask whether the survey participant believes that
> a consistency among decision is important and why or why not. 20.  I
> think the last question submitted by Dan should be removed.  I do not
> think we should design a survey that pulls out a fact from one
> recently reported case and makes it an issue for our survey. I hope
> these comments will assist Dan in putting together Draft II. Again, I
> want to thank everyone for their input and Milton and Caroline for
> their leadership. Kind regards. J. Scott Evans
> ADAMS, SCHWARTZ & EVANS, P.A.
> jse@adamspat.com
> 704-375-9249   ----- Original Message -----
>
>      From: Dan Steinberg
>      To: carmody@lawyer.com
>      Cc: Chicoine, Caroline G. ; nc-udrp@dnso.org
>      Sent: Wednesday, October 17, 2001 9:51 AM
>      Subject: Re: [nc-udrp] ICANN LA Meeting
>       Well it's easy to see clear consensus on this issue.
>      Hopefully we will
>      do equally well in resolving any future differences.
>      I will make this change (actually already implemented since
>      Milton's
>      logic convinced me) and others and submit a draft II this
>      evening
>      (Eastern Time).  I will continue to put drafts on the table
>      as long is
>      task force members perceive there is merit.    It's good to
>      see we are
>      making such progress against the tight deadline.
>
>      As for LA, regtrettably I will not be able to attend.
>
>      James Carmody wrote:
>
>      > Caroline:
>      >
>      > I join the ranks of those who suggest a minimal
>      > explanation.  I also think it important to be clear as
>      > to the status of those responding to the
>      > questionnaire.  The whole process has become
>      > politically charged with some who think everything is
>      > a protectable trademark and others who think that the
>      > panelists should second guess the PTO in every case.
>      > At least we should know the general background of
>      > those responding to evaluate the bias.
>      >
>      > As for a social in LA, count me in!
>      >
>      > Jim Carmody, Houston
>      > --- "Chicoine, Caroline G."
>      > <CCHICOINE@thompsoncoburn.com> wrote:
>      > > To the extent that some of our group might be in LA
>      > > for the ICANN meeting, I
>      > > thought it would be nice to have a get together to
>      > > put some faces with
>      > > names.  I was not planning to do anything
>      > > substantive so those that will not
>      > > be attending will not miss anything (except good
>      > > company and a drink or two
>      > > or three..); just more of a social get together.  If
>      > > we thought an actual
>      > > meeting would be helpful, I could check to see if we
>      > > could get a room with
>      > > telephone access.
>      > >
>      > > Please let me know if you plan to attend LA and what
>      > > your thoughts our on
>      > > whether you believe a substantive meting is
>      > > necessary.
>      > >
>      > > Thank You.
>      > >
>      > > Caroline G. Chicoine
>      > > Thompson Coburn LLP
>      > > One Firstar Plaza
>      > > St. Louis, MO.  63101
>      > > (314) 552-6499
>      > > (314) 552-7499 (fax)
>      > > cchicoine@thompsoncoburn.com
>      > >
>      >
>      > =====
>      > James A. Carmody, nn5o, carmody@lawyer.com
>      > Voice Mail: 713 446 4234; eFax: 815 461 5321
>      >
>      > __________________________________________________
>      > Do You Yahoo!?
>      > Make a great connection at Yahoo! Personals.
>      > http://personals.yahoo.com
>
>      --
>      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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