Re: [nc-udrp] Not Forum Rules, but the UDRP

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

> While the Forum will not comment on the facts involved in a pending
dispute,
> it is important that certain misunderstandings set forth below about the
> UDRP be corrected.

I wholeheartedly agree with Mr. Cole.  WIPO regularly accepts payment by
check with the hard copy of the Response, even if the check is not received
by the 20 day Response deadline.  As Mr. Cole points out, there is only one
way to interpret the rule on Respondent payment, and it is in accordance with
the inequity that was built into the procedural rules in this circumstance.
As Mr. Cole also implies, WIPO's practice of accepting payment by check
following a timely electronic submission is in violation of the rules as
interpreted by the NAF.

> A careful read of the UDRP Rules will disclose that the "file-now-pay-later
> policy" referred to below is not a Forum policy and is not found in the
> Forum rules, but comes directly from the UDRP Rules.  See Rule 19(c), which
> establishes the ten day period.  Presumably all providers, not just the
> Forum, follow this Rule.  The payment deadline that applies to Respondents
> also comes from the Rules.  See Rule 5(c).  It would seem that the drafters
> of the UDRP, who included a window of time for receipt of an initial fee
for
> the Complaint, would have included one for the Response if that had been
> their intention.  In fact, the Rules explicitly state that failure by
> Respondent to pay the fee (to have the dispute decided by a three-member
> Panel) at the time the Response is submitted shall result in a
single-member
> Panel.  The Forum did not draft these Rules, but is charged with the fair
> administration of proceedings under them.  It is unfortunate that when the
> Forum applies the UDRP consistently and evenly as drafted, some folks
> perceive this as unfair.  I know many parties who would be far more
> concerned if the Rules were interpreted on a case-by-case basis.  From a
> procedural standpoint, in its administration of these proceedings, the
Forum
> makes every effort to apply consistently and predictably the Policy and
> Rules.  Any other approach would leave parties guessing from one situation
> to the next how their disputes will be administered.

Indeed it certainly does leave practitioners guessing.  WIPO handles payment
of the three-member panel fee in a completely different manner than the NAF,
and interprets this same rule in a manner that is utterly divergent from the
way it is interpreted by the NAF.

Insofar as consistent application of the rules is concerned.  The NAF refused
a respondent refund of the three member panel fee when the complainant
withdrew the tobacco.com complaint upon receipt of the response, and further
refused to appoint a panel for which the Respondent had indeed timely paid
the entire fee.  One month later, in precisely the same set of circumstances,
the NAF seated a panel to consider the RDNH claim in the universitymall.com
dispute.  The tobacco.com respondent is still left guessing what happened to
his money.

It is indeed unfortunate when the same words are interpreted in entirely
different ways by different dispute providers, for a single dispute provider
to insist that the other dispute provider is habitually violating the Policy.
If the NAF desires to assert that WIPO is not following the policy by
accepting payment post-deadline, they should take up the issue with ICANN,
and not blame parties who are left guessing by wildly disparate
interpretations afforded to the rules by the various dispute providers.

In view of this clarification, do you Mr. Cole believe it is fair for the
rules as drafted to provide a post-filing payment period for Complainants but
not for Respondents?  After all, if anyone thought this asymmetry was unfair,
then this list would certainly be the appropriate place to discuss it.

John Berryhill