Re: [nc-udrp] UDRP Questionnaire

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

From: "Katrina Burchell" <Katrina.Burchell@unilever.com>

> It goes in favour
> of the trade mark owner (so some of you may be annoyed!)

In an ideal world, one would expect most decisions to favor the complainant,
since in an ideal world meritless cases would not be filed.  That is one
fallacy advanced by the "foaming at the mouth" variety of UDRP critics who
claim that the overall 80% complainant win rate is, without more, suggestive
of bias.  There are some issues to be explored there, but the gross
statistic, without other analysis, is meaningless.  Simply scanning the list
of domain names involved in UDRP disputes is simple evidence that the Policy
has been effective to address run-of-the-mill cybersquatting situations
involving inherently distinctive and famous marks.  That shouldn't be at all
annoying to anyone.

Substantively, I believe the Policy in its present form is very good, and
under any policy there will always be "bad" decisions either way, which is a
simple fact of life.  There are differences of interpretation among panelists
which has rendered the outcome of some recurring issues to be entirely
panelist-dependent.  But in the main, my observation is that "bad" decisions
tend to arise when panelists stray from the thrust of the Policy about which
there is little disagreement - that it was intended to be a lightweight
summary procedure for weeding out clearcut cases of abusive bad faith domain
registration, and not intended to make new law or provide a vehicle for
complex legal reasoning, balancing tests, or credibility determinations in
the face of conflicting evidence.

The Policy is, in the main, balanced.  Some interpretations have not been.
Making the First WIPO report required reading for prospective panelists would
go a long way toward addressing activist law-making impulses.   The First
WIPO Report is unambiguously clear about the aims and limitations of the
Policy.  Alternative dispute resolution mechanisms work well when they are
based on an understanding of applicable law.  Where there is no applicable
law, arbitration proceedings are not a good vehicle for forging a new common
law which may be diverging from existing legal norms.  A perfect case in
point is the history of the cello.com domain name.  On the same facts where a
US federal judge, with more briefing and oral argument, could not find in
favor of either party on summary judgment and the case was later dismissed, a
UDRP panelist subsequently decided, on the same record, to effectively
reverse a federal court decision.  The Policy is very carefully worded to
refer to it as an "administrative proceeding" for a reason, and is
inappropriate for reversing a final judgment of a court.

I also do not agree with the "foaming at the mouth" camp's protestations that
the UDRP is some horrendous burden foisted on domain name registrants, and
should be eliminated.  The UDRP provides a real benefit to legitimate domain
name registrants who would otherwise not have the means to fight a court
battle in what would likely be a remote jurisdiction.  By the same token, it
lowers the barrier to the occasional specious claim made by a complainant.
But the UDRP at least provides a fighting chance that many domain name
registrants would not otherwise have.

There are some technical problems, such as the "cancellation" outcome, which
have caused more grief for the unwary than are warranted.  Another issue is
educating the registrars.  I spent most of my working time today trying to
retrieve a domain name from a complainant who lost a UDRP proceeding, and to
whom the registrar then transferred the domain name anyway.  That's not the
first time I've had to deal with gross registrar noncompliance, and it is
time flushed down the toilet.

That said, it has been my observation that, procedurally, my doctor suggests
I stay with representing complainants, because some of the procedural
nightmares on the respondent end of the process have at times driven my blood
pressure to dangerously high levels.  Receiving a three-inch thick book of a
"supplemental" to a ten page original complaint when you have three hours
left to respond according to the provider's supplemental rules is not
anyone's idea of fair.  And, yes, I've seen it happen.  But if any procedural
changes are determined to be warranted, the over-riding goal should be to
keep the entire process as simple and as understandable as possible.

In any event, this long-winded note was simply meant to note that in
evaluating responses, those from actual participants should be distinguished
from those of casual windbags  (other than me, of course).  No doubt there
will be those which express the view that the Policy is a crime against
humanity, but there is little reason to actively solicit that sort of input.

John Berryhill
Philadelphia, Pennsylvania