Re: [nc-udrp] DRAFT summary to date

[Dan Steinberg <synthesis@videotron.ca>]

why not take a stab at replacing my paragraphs with ones of your own? Believe me,
I'm not married to the text but having done numerous surveys (including surveys
of legal professionals) I have found it almost always helps to situate the reader
first.

"M. Scott Donahey" wrote:

> I, for one, cannot agree to the editorial comments included in the
> suggestions.  For example:
> "Court-like
> This section covers how much commenters [sic] feel the UDRP should resemble a
> court.  Although court systems vary greatly with jurisdiction, there is a
> common thread of expectations that come with the notion of a 'court' no
> matter what the jurisdiction.  It should be noted that if everyone wishes the
> UDRP to be a court, there is no real purpose in having one since courts
> already exist."
>
> This neither represents my view, nor is it a fair characterization of the
> questions.  Can we please have questions only, and dispense with the
> editorials which purport to represent the views of the Task Force, when in
> fact they do not.
>
> Best regards.
>
> M. Scott Donahey
> Tomlinson Zisko Morosoli & Maser LLP
> 200 Page Mill Rd.
> Palo Alto, CA  94306
> Phone:  (650) 325-8666
> Fax:      (650) 324-1808
> msd@tzmm.com
> www.tzmm.com
>
> "This email message is for the sole use of the intended recipient(s) and may
> contain confidential and privileged information.  Any unauthorized review,
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> recipient, please contact the sender by reply email and destroy all copies of
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>
>  -----Original Message-----
> From:   synthesis@videotron.ca [mailto:synthesis@videotron.ca]
> Sent:   Sunday, October 14, 2001 10:00 PM
> To:     nc-udrp@dnso.org
> Subject:        [nc-udrp] DRAFT summary to date
>
>                                                        DRAFT
>
> I have taken the liberty of accumulating the questionnaire suggestions
> posted to this list over the past few weeks. Since there was no
> objection to the grouping I proposed, it forms the basic framework.  I
> have added brief placeholder paragraphs to explain each section so that
> people wishing to comment can be more aware of the context of each of
> the questions.  There should probably be explanatory paragraphs for all
> the bullet sections as well so that commenters need not be fluent in the
> language of the law (in English) in order to respond to this
> questionnaire. Please note that I don't consider any of the explanatory
> paragraphs to be complete, merely drafts (as is all of the document for
> that matter)
>
> I think this is the last time I will post this directly as a message,
> but switch to word documents if no one has any objection.  In the
> meantime, my apologies for the poor formatting.  Please let me know if I
> have missed any questions/suggestions posted to date.
>
> 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.
>
> Court-like:
> This section covers how much commenters feel the UDRP should resemble a
> court.  Although court systems vary greatly with jurisdiction, there is
> a common thread of expectations that come with the notion of a 'court'
> no matter what the jurisdiction.  It should be noted that if everyone
> wishes the UDRP to be a court, there is no real purpose in having one
> since courts already exist.
>
>         Should some body 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?
>
>    ·  procedural due process
>         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 some need for improvement in notice
> procedures? (new material added by DS)
>         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  (new
> material added by DS)
>
>   ·  ability to appeal
>         Do you believe there should be an appeal process within the UDRP
> and why?
>         If yes, what would it look like?
>         Should a complainant that loses a UDRP case before a single
> panel be able to refile the case before a 3 person panel and why?
>         Has your UDRP decision been challenged in national court and if
> so, did the court decide the case differently than the UDRP panelists?
>
>    · publication/visibility of decisions
>         Do you believe copies of the complaints and responses should be
> publicly accessible and why?
>
>    · 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 not, how long would you recommend is needed?
>
> Visibility
> In many jurisdictions, there are restrictions placed on lawyers and
> courts. These restrictions serve to increase citizen's faith in the
> judicial system and the legal profession. But like conflict-of-interest
> guidelines for politicians, there sometimes needs to be some economy of
> scale. For example in a small town, if the mayor happens to be the only
> paving contractor....should the mayor be precluded from bidding on
> paving Main Street?  In a large metropolitain area, there would be
> (normally) more than one paving contractor so it is possible to bar the
> mayor from bidding on contracts tha that the town council might be asked
> to evaluate.
>
>         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?
>
> Overall fairness
> The following section focuses on the perceived fairness (or not ) of
> both the process and the decisions rendered
>
>        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?
>
>    · 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'
>
>    · 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
>
> 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)?
>
> Scope
> This section address issues of scope, such as should the UDRP be
> expanded to cover other situations? Or should it be decreased in scope.
>
>    · 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 believe the UDRP adequately deals with the issue of
> generic trademarks and why (please include examples, if possible)?
>
> Other sources
> This section covers other sources that commenters feel should be
> investigated when researching proposed changes to the UDRP.
>    · 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?
>
> --
> 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
>
>  << File: ALTERNATIVE.HTM >>

--
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