Proposed UDRP Top 5 issues

[Marc Schneiders]

On Wed, 24 Sep 2003, at 11:06 [=GMT-0400], Milton Mueller wrote:

> Here is what I am considering submitting as a top 5:
>
> (4) Should the provider and panel selection processes be modified to
> address concerns about potential conflicts of interest?
>
>    [This would include complainant selection bias, panel selection
>    bias, etc. Probably the top priority for us. ]

Yes. Important.

> (5) Should standards for accrediting providers and panelists be
> promulgated?
>
>    [there should be some way to de-accredit biased providers and
>     panelists, but this could cut both ways. Of course, most pro-
>     civil liberties panelists have already been kicked out by
>     WIPO anyway.]

Important in itself, but as you note, probably not effective and
therefore not a good priority topic?

> (8) Should the notice requirements be amended?
>
>    [Some feel that the notice requirements are too short. Is this
>     a top priority?]

Yes, yes, yes. The complainant can take as long as he likes. The
respondent has just three weeks (I didn't check but it is something
like that). Now suppose one is away a week, or two weeks. Also the
time the paperwork takes to travel to respondent is not deducted!

Also there should be a limit for filing a UDRP complaint of one or two
years after registration of a domain (unless the use changes affecting
a TM; complainant has to PROVE this, not merely state it). For all
domains registered prior to the start of the UDRP there should be a
final chance during 6 months than finito.

> (10) Should administrative panel decisions be subject to internal > appellate review?
>
>    [whether you agree or disagree with the appeal option, it
>     seems to be a high priority issue that needs to be resolved.]

I don't see why respondents that lose, should only have a second
chance if they can afford an expensive court case. Why can't they get
a review at the same costs as the complainant paid or slightly higher?
Right now UDRP appeals are very few, because of the high costs
of a court case.  I know this from experience. It is pretty unfair
that one can try to win someone elses domain at $1000 and the appeal
costs more than 10 times that. It makes attempts to reverse hijack too
tempting, as we have seen in several cases. DW.COM comes to mind.

> (17) Should complainants be required to post a bond and/or pay a penalty
> in order to deter "reverse domain-name hijacking"?
>
>     [there should be some deterrent to RDNH]

Important topic. Complainant should pay legal costs of respondent when
he loses. Perhaps a fixed amount. Now one can have a try at $1000 or
so.

> ==== Here are some other worthy issues =====
>
> (18) Should the policy expressly include affirmative defenses?

Non topic. How would it help domain name holders?

> (19) Should administrative panel decisions have precedential effect?

Don't they in fact already work this way? They quote each other. Non
topic, too small.

> (3) Should complainants and respondents be allowed to amend and/or
> supplement their filings?

NAF does that already. It is tricky. I don't see why it is necessary
or useful in most cases. Non-topic.

> (13) Should the policy be amended to provide guidance regarding the
> interpretation of "confusing similarity"?

> (15) Should the policy address the question of whether "holding"
> constitutes "use"?

Well, if the outcome is "NO" than yes! :-)

> (16) Should "settlement negotiation" communications be excluded as
> permissible evidence of bad faith?

Yes. But they get around that by letting someone else ask whether the
domain is for sale. The mere offering for sale (as opposed to
offering it to the specific TM-holder as such) should never constitute
a reason for transfer. If a TM owner or his legal council asks for the
price, the reply should not be useable as evidence of bad faith etc.

I think I've answered more than you asked :-)

>