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Re: [nc-udrp] My Comments on Draft III


Well since Caroline has offered to reveiw everything over the weekend that gets me off the hook for draft III. I have some comments (in black identified by my initials (DS)).  Please include these comments for consideration along with my earlier post.

James Carmody wrote:

First of all, my thanks and congratulations to those who have gotten the Questionnaire this far!  My comments (in green and in brackets) are really refinements looking at the issues through the eyes of a panelist.

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?

[How do you propose any transfer to another provider be accomplished from a procedural standpoint?]

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. [ Did you experience ]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?

[Do the UDRP rules allow enough time for the parties to state their positions and for the panelists to rule competently?]

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 [have] 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 [DISCLOSURE BE MADE] 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?

25a (DS) If there is a finding of 'reverse domain hijacking' should there be a monetary penalty?
 

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?

[Should UDRP Policy be more specific on issues such as common law trademarks, competing trademarks used in different jurisdictions, the issue of "laches" in asserting a complaint, deference to registered trademarks which the panelist may feel are generic,  deference to fact allegations, strength of the mark, etc., in default proceedings. ]

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?

[Move to position below 15.]

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?
 

43a (DS) should a pending trademark application have weight in UDRP or not ? (question added by me, removed before it was possible to discuss)
 
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:
 

James A. Carmody, nn5o, carmody@lawyer.com
Voice Mail: 713 446 4234; eFax: 815 461 5321
 


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