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RE: [nc-udrp] DRAFT III


I think we are getting to some good questions now, but I still believe that most of them are extremely vague and need to be more narrowly tailored.  In addition, I believe that we certainly need to make it more readable and probably divide up the questions into categories (i.e., Procedural question, Dispute Provider Questions, etc...  Otherwise, I have the following comments to the questions: 
 
Question
2)  This question should be moved much further back in the survey.  Should we elaborate if the person had challenged to find out the outcome?
3)  I know this may be obvious, but we should probably state represented by "legal" counsel.  I may have missed an earlier comment, but why are we asking why someone was "not" represented by legal counsel?
 
4)  I think this question should be made easier to understand by the average person.  Words like "provider" no "exclusive" are not always easy to translate into other languages.   In addition, the question sounds like a loaded question.  Maybe it should be a multiple choice question asking the reader "Who do you believe should be responsible for the selection of a dispute provider for a UDRP action?  (a)  The Complainant, (b)  The Respondent, (c)  Both the Complainant and Respondent, (d)  Neither, it should be assigned randomly. "  This is not the exact wording, but just an idea.
 
5)  This is an extremely vague set of questions.  Currently, I believe if a Complainant makes a simple error in its complaint, I believe things can be corrected.  If you are taking about adding new evidence, I think this should be spelled out.
 
10)  Are you referring here to a new Complaint based on new evidence for the same domain name?  I think this should be clarified.
 
11)  I think with respect to appeals, we should find out why the person does or does not believe there should be an appeal.
 
13)  This is a combination of two extremely vague questions and could lead to pages and pages worth of responses.  For example, rather than asking how it can be financed, we could ask who should be responsible for paying the costs of an appeal.  How should that cost be determined?  I believe these are extremely important questions which have garnered a lot of debate.  Is there a way that this can be broken down into smaller questions?
 
14)  This question should be phased more like, "If you support an appellate process, how many panelists do you believe should be required to preside over the appeal?  Why?
 
15)  The term "preclusive" is a term I believe that is only understood by attorneys (and can have several different meaning).  Should we ask:  "If one UDRP panel has already made a determination on a UDRP complaint in favor of the respondent, should this prevent the same complainant from initiating a UDRP action against the same Respondent for the same domain name?"  Is that what we are trying to get at?
 
18)  I am confused by this question.  Have the dispute providers claimed intellectual property in their own decisions such as to prevent others from viewing the decisions or citing to those decisions in subsequent UDRP actions?
 
20)  This is very vague as well.  What is meant by "contractual obligation."  How can one have a "contractual obligation" to participate in a UDRP proceeding?  I am not sure what information we are trying to get (and from whom?)
 
21)  Should probably add, "if you do not believe that there is sufficient time..., how much time would be sufficient?"
 
22)  Do we mean panelists from representing parties in UDRP actions with the same dispute provider?  Or are we also trying to capture a panelist from WIPO representing a complainant before the National Arbitration Forum?
 
23)  Same as 22.  Although I am not sure of the relevancy?
 
24)  This one is extremely vague too.  Is there a way to narrow this down into categories and then provider an "other" category where the Respondent can explain?
 
25)  There are several definitions of "reverse domain hijacking" that I have seen. Should we be more explicit?
 
29 and 30)  I think these are extremely loaded questions. How many people would answer that they should not be consistent?  Do we mean should the cases rely on precedent of other cases?  Or are we trying to get at something else here?
 
35)  I believe this is an extremely key issue that we may want to break down.  If someone replies in the affirmative, it could have some significant impacts.  For example, if someone believes that precedent should be followed, this will cause the parties to have to actually do "legal" research and make arguments based on the previous cases.   In addition, this will significantly raise the costs involved, and in my opinion force a complainant or a respondent to seek out legal counsel to try to pursue or defend its case.  Furthermore, it will cause each of the panelists to do its own research on the "case law" (adding more costs).  Therefore, I believe that this question needs to be modified to address these topics.  That being said, I will admit to not knowing exactly how to do this.
 
36-39)  This question is a tough one to ask the general public, who is probably unaware of what the fees are actually paying for.  Maybe we should ask the question of "how should fees be determined" rather than asking whether a fee (which the public knows very little about) is appropriate.
 
44)  Sponsored TLDs are not the only ones to have "charter violations."  I know that We (NeuLevel) have a charter dispute policy as well as .name.  We should amend the question.  In addition, rather than asking whether it should be expanded (because it is too late), we should ask whether they are familiar with the .biz, .name, and other charter dispute policies and find out what their thoughts are.
 
45)  I understand the first part of the question but am confused about the second.  Are you asking whether one should be able to challenge a ccTLD registration and a gTLD registration in the same UDRP complaint if the respondent is the same?
 
45a)  I agree with J. Scott about not asking about Generic Trademarks and his rationale.
 
46)  Are we asking about ccTLD mechanisms or court proceedings in this question?
 
 
 
 
-----Original Message-----
From: J. Scott Evans [mailto:jse@adamspat.com]
Sent: Thursday, October 18, 2001 10:41 AM
To: UDRP Task Force
Subject: [nc-udrp] DRAFT III

DRAFT III

Dear All:

Rather than take the time to draft a long document commenting on Dan's latest draft (thank you again Dan), I simply took the latest draft and revised it to incorporated my comments from last night.  I have removed some questions and I have highlighted those that I revised.  IMHO, I have tried to remove questions and/or phrasing that seem emotionally charged or that I felt would solicit information not particularly relevant to our task.  I in no way mean to say that my draft is better than Dan's, I just feel it is slightly refined and, I hope, will assist us in moving the discussion forward.  I think we still need to reach consensus on this questionnaire prior to our Oct. 31 deadline.  I welcome any comments from the members.

Kind regards.

J. Scott


1.  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 _____________________  

2.  Have you ever challenged a UDRP decision in court?  Why or Why not?

3.  If you have ever been a party in a UDRP action, were you represented by counsel? If not, why not?

4.  Should the selection of a provider continue to be the exclusive right of the complainant?  Why or why not?

5.  Should complainants be allowed to amend their complaint? Why or why not? Should Respondents be allowed to amend their responses?  Why or why not?

6.  Were there any difficulties in collecting or submitting proofs or other materials in the process of dispute resolution? If so, please describe.

7.   How would you improve the notice procedures found in the UDRP?

8.   Have you been well informed of the course and schedule of dispute resolution
       
9.   Do you believe the providers’ supplemental rules should be uniform?  Why or why not?

10. Should a Complainant be able to re-file a new complaint on the same domain name?  Why or why not?

11. Do you think there should be the ability to appeal a decision within the UDRP? IF NO, PLEASE SKIP TO NEXT SECTION.

12. Do you believe there should be an appeal process within the UDRP and why?

13. How should such an appeal process work and how should it be financed?

14.  Should all appeals go to a 3-member panel?  Why or why not? 

15.  Should prior UDRP decisions any preclusive effect in subsequent UDRP proceedings involving the same parties and same domain name(s)?

16.  Do you believe copies of the complaints and responses should be publicly accessible?  Why or why not?

17.  SHOULD THIS BE DURING OR ONLY AFTER THE DECISION?

18. Should decisions be in the public domain or should they be the intellectual property of the providers.       

19.  DO YOU BELIEVE THAT THE DECISIONS SHOULD BE AVAILABLE IN ONE CENTRAL PLACE 
ACCESSIBLE FOR PANELISTS AND PUBLIC? 
  
20.  Of the following factors, please rank the factors which most influenced your decision to participate in a UDRP proceeding using a scale from 1 to 5, with 1 being the most important factor and 5 being the least important.

Cost of proceedings ___        Thoroughness of process ____        Other _______________________________

Speed of proceedings ___      Quality of decisions _____

Provider reputation ____        Contractual obligation _____

IF YOU ARE NOT A PANELIST OR PROVIDER, PLEASE SKIP TO QUESTION NO. 22.

21.  If you are a panelist or provider, do you believe there is sufficient time to review complaints and answers for sufficiency?   Why or why not?

22.  Should panelists be disqualified from representing parties before the UDRP?  Why or why not?

23.  Should panelists' law firms be disqualified from representing parties before the UDRP?  Why or why not?

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

25.  How should "reverse domain name hijacking" be dealt with under the UDRP?

IF YOU HAVE NEVER BEEN A PARTY OR COUNSEL FOR A PARTY IN A UDRP ACTION, PLEASE SKIP TO QUESTION NO.29

26.  If you have been a party or counsel for a party in a UDRP action, was the process sufficiently clear to you?  Why or why not?

27.   If you have been a party or counsel for a party in a UDRP action, did you feel that the panelist/panelists were impartial and considerate in handling the case?   Why or why not?

28.   If you have been a party or counsel for a party in a UDRP action, did you have any communication difficulties such as a language barrier?  If so, please describe your experience. 
 
29.  Do you believe it is important for UDRP decisions to be consistent?  Why or why not?

30.   If so, how would you amend the UDRP to ensure consistency among decisions?

31.   If you have been an arbitrator, was there information in prior decisions that you would have liked to have but was difficult to find?

    ·  issue of 'confusingly similar'

        Can someone come up with question(s) here?

33.  Do you believe both registration and use should be required for a finding of cybersquatting?  Why or why not?

34.  Should the UDRP be revised so that either registration or use alone can be used to sustain a finding of cybersquatting?  Why or why not?

35.  Should prior UDRP decisions have precedential value for future proceedings within the UDRP?

36.  Do you feel that the fees being charged by the providers are appropriate?  If not, why not?

37.  If you feel that current fees are not appropriate, how do you feel they should be changed?

38.  Do you feel that the fees being paid to the panelists are appropriate?

39.  If not, how do you feel they should be changed?

40. Should a respondent get a refund on the fee for a three person panel requested by the complainant when the complainant drops the complaint if so, what type (i.e., full, partial)?

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

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

43.  Should the UDRP be expanded to cover disputes other than cybesquatting?  If so, what other issues should be covered and why? 

44.   Should the UDRP be expanded to deal with charter violations of sponsored TLDs?  Why or why not?

45.   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)?  THERE IS NO SUCH THING AS A GENERIC TRADEMARK.  A GENERIC IS PER SE UNREGISTRABLE AS A TRADEMARK.  THEREFORE, THIS QUESTION IS UNSOUND FROM A LEGAL PERSPECTIVE AND EMOTIONALLY CHARGED TO SOLICIT A RESPONSE.

46.  Are you aware of any other dispute resolution mechanisms for dealing with cybersquatting that you feel show merit in some way?

47.  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?

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



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