"J. Scott Evans" wrote:
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
I think the point of this
question is asking if there should be a body created that has the ability
to decide things like the issues we are discussing now, for example should
different arbitrators be allowed to have different supplemental rules?
We have been diligent in assessing the issues that are current but I doubt
any of us is clairvoyant. In many systems, someone is charged with setting
the rules and I think the question is a valid one. If commenters all come
back with negative responses then we have learned something.
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.
I would suggest that if commenters
reply in the affirmative we ask 'under what circumstances?' to see if there
is belief the ability is unlimited or if there should be restrictions.
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
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.
while I agree this question
is an improvement over the original I also believe we should perhaps 'help
out the reader' a bit perhaps with sub-question on issues that we know
to be contentious.
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
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.
With respect, I disagree.
The fact that it is only one case does not mean it will be the only one.
I submit that news of the decision might incite others to try the same.
I see no harm in asking the question as it might give us new information.
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
ADAMS, SCHWARTZ & EVANS,
Original Message -----
Sent: Wednesday, October 17, 2001
Subject: Re: [nc-udrp] ICANN LA Meeting
Well it's easy to see clear consensus on this issue. Hopefully we
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
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:
> 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."
> > 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)
> > email@example.com
> James A. Carmody, nn5o, firstname.lastname@example.org
> Voice Mail: 713 446 4234; eFax: 815 461 5321
> Do You Yahoo!?
> Make a great connection at Yahoo! Personals.
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