Re: [nc-udrp] Can we get to work, please?

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

> The point, my friends, is that we have to start discussing
> and proposing IDEAS about how the UDRP should be
> changed.

...or if it needs change at all.  Who knows, we might agree that it is best
left the way it is, but we have no idea what the members of this task force
believe, based on the collective navel gazing effort thus far.

We have quite a few experts here, and I really don't know if anyone shares
the view that there is probably very little "need" for much substantive
change, but there are some recurring procedural traps for the unwary that
might be made simpler.

One the very simple question of whether 'cancellation' - the best way to
embarass novices - could be deleted as an outcome, I have no idea what the
range of opinion of this august panel of experts might even be.  Does the
internet need more of these: http://www.fibershield.net/,
http://www.lladro-retired.com/, http://www.planetrxx.com/ .  I got tired of
renewing some of the ones in the collection, because I thought by now the
point had been made.

I used to say that the UDRP had three outcomes - Complaint Denied, Transfer,
and Let Berryhill Have The Domain Name, because for two years running, those
were the only three results.  Folks, this is a no-brainer of a question.
Cancellation lets the respondent re-register the domain name, and that has in
fact happened with some of the cancelled names.  We have complainants that
pay $1500 to get a decision in their favor, and the next day the same idiot
has the domain name.

Cancellation also introduces a technical artifact into the (pending) deletes
policy that is simply not needed, because as an outcome cancellation is dumb.
I have spoken with several members of the WIPO I process, who have told me
that most of them knew it was dumb, but gave up on trying to disabuse others
of the notion that a "cancelled" domain name would go off to some domain name
Valhalla, never to be seen again.

We also have Mr. Kerans of the NAF who, as wonderful a person he might be,
repeatedly uses "cancellation" sua sponte when he thinks that *neither* party
has a right to the domain name.

This is just one example, but based on our collective review of the survey
results, the articles, and the expertise for which we were all selected, it
doesn't seem that hard to make a collective "wish list" of proposed reforms
from all quarters within the scope of the TOR, and take a straw poll here of
things that are "right out", "worth discussing", and "apparent consensus and
worth reccomending" and fly with that.

I believe that there is a broad consensus that the UDRP is a good thing.  I
also believe, from the perspective of domain registrations that the UDRP in
principle is a good thing for domain registrants.  Domain registrants have
the option of initiating their own litigation if they want, and I have
represented and advised registrants who have done just that.  But in the
absence of the UDRP domain registrants are, in general, at a serious
disadvantage if the only option for TM claimant is to file costly litigation
in remote venues.  So, despite my "playful" (and considered "obnoxious" by
some, I know) style of highlighting problems, please don't paint me into the
"barbarian at the gate" corner into which some want to needlessly divide the
world.  I believe there are some changes that can make the UDRP more fair,
but at the present time I can count on maybe three fingers the number of TF
members who believe *any* change to the UDRP is warranted.

Having now recovered from a recent injury, I promise not to bite.  I also
note that my input here will be informed by the views of other attorneys,
such as Mr. Steve Sturgeon (http://www.domain-name-dispute-lawyers.net) and
Mr. Ari Goldberger (www.esqwire.com) who also have extensive experience from
the perspective of domain name registrants.  Collectively, we are the folks
who are a complainant's worst nightmare in UDRP disputes, but we all agree
that the UDRP is preferable to litigation for most domain name registrants,
and we are optimistic that this TF just might suggest reforms that would make
the policy better for all participants.

We have our list, if you have your list, then let's compare notes.

John