Question 5: UDRP

Thu Oct 6 13:16:54 CEST 2011

On this issue see the following update from WIPO—which has very much taken a stance on these issues –including some issues related to the privileges discussed yesterday.

"The General Assembly noted developments in the WIPO Arbitration and Mediation Center’s provision of alternative dispute resolution (ADR) services<http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=174184> , including assistance requested by stakeholders in their establishment of procedures for resolving recurring types of IP disputes, such as those involving members of rights management organizations. In relation to the Internet domain name system (DNS), the General Assembly took note of plans by the Internet Corporation for Assigned Names and Numbers (ICANN) for significant expansion of the DNS, including determinations made by ICANN with regard to new trademark-based dispute resolution mechanisms. Member States expressed concerns about the adequacy of these new mechanisms, as well as about current ICANN efforts in relation to possible revision of the existing WIPO-initiated Uniform Domain Name Dispute Resolution Policy (UDRP), under which the Center had received record case filings in 2010."

See also paragraphs 221-229 of the detailed report found at http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_40/wo_ga_40_19_prov.pdf

which indicates that the countries which spoke up on this topic were China, Switzerland, and the US.

WIPO arguably duplicates GAC –given its membership?  Noting Milton’s article about GAC’s stance –I question how these institutional forces can be effectively balanced or countered ---or at least any duplication made transparent and countered on a structural level.

Best,

Victoria McEvedy

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-----Original Message-----
From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Wendy Seltzer
Sent: 05 October 2011 05:46
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: [NCSG-Discuss] Question 5: UDRP

>> Question 5: What is you view on the issue of UDRP review?  Are there

>> respondents rights that need attention such as the length of time a

>> respondent gets to respond.

>

I agree with Rafik. As we have both said in Council meetings and public

forums, it's not right for this important policy to be uniquely exempted

from review.  As ICANN proposes the contracting-out of even more

contention decisions (URS, string contention in new gTLD applications,

morality and public order challenges), I think review can help us to

refine the way ICANN uses arbiters, and ensure its fairness.

In response to Nicolas Adam's question:

> -- How long a time do you think is ok for defendant in a UDRP process

to have?

I believe the defendant/respondent needs adequate time to get real

notice of the complaint, and time and opportunity to find help in

understanding it before responding, including translation, if necessary.

Although the process is supposed to be doable without a lawyer, many

non-commercial registrants may not feel prepared to represent themselves

without counsel.  I've similarly fought for safeguards in the Uniform

Rapid Suspension process.

--Wendy

On 10/04/2011 09:41 AM, Rafik Dammak wrote:

> Hello,

>

> there was already some discussion about UDRP and the urgent need for

> reviewing it as many academic papers and surveys (collected and some of them

> authored by Konstatinos and Milton) concluding about the issues related to

> UDRP and its limitations as arbitration process for domain names to ensure

> fairness. . this process need to be reviewed and assessed and more efforts

> and changes to make it fair and not quasi-systematically in favor of

> plaintiff in many cases including trademark.

>

> there is ongoing discussion  in NCSG ML about the issue report of the

> current state of UDRP and the alarm is triggered with the resistance of

> ICANN staff in regard of initiating any actions or starting the process of

> reviewing. we cannot accept this statu quo situation.

>

> definitely the respondents rights needs more attention in particular with

> the introduction of new process by new gTLD program mainly inspired from

> UDRP which is the URS .URS raise issues like the time length to respond ,

> again over again.

>

>

> Rafik

>

> 2011/9/30 Avri Doria <avri at acm.org>

>

>> As I have not been able to get a conference call scheduled yet, I am

>> starting the question process.  I suggest that all candidates answer all

>> questions.  I suggest that they feel free to debate among themselves and

>> with the members of the NCSG.

>>

>> Thanks

>>

>> Avri

>>

--

Wendy Seltzer -- wendy at seltzer.org +1 914-374-0613

Fellow, Yale Law School Information Society Project

Fellow, Berkman Center for Internet & Society at Harvard University

http://wendy.seltzer.org/

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