Treat UDRP findings on both sides (cybersquatting and reverse domain-name hijacking) as equivalent

[Wendy Seltzer <wendy@xxxxxxxxxxx>]

A brief comment in my individual capacity:

If new gTLD applicants are to be judged for their compliance with UDRP
law, they should be judged equally for findings of cybersquatting and of
reverse domain-name hijacking.  Namely, evaluation criterion 1.2.1 k
fails to reflect the full range of UDRP violations:
k. has been involved in of a pattern of
   decisions indicating that the applicant or
   individual named in the application was
   engaged in cybersquatting as defined in
   the UDRP, ACPA, or other equivalent
   legislation. Three or more such decisions with
   one occurring in the last four years will
   generally be considered to constitute a
   pattern.

This section should be amended to treat as equally disqualifying a
pattern of abuses of the UDRP or litigation in attempts to take domain
names from legitimate registrants.

I recommend amending to: "has been found liable for a pattern of abusive
or bad-faith behavior, namely cybersquatting or reverse domain-name
hijacking, as defined in the UDRP, ACPA, or equivalent legislation."

Furthermore, because this measure adds new consequences to old findings,
applicants may not have had adequate incentive to challenge default or
erroneous judgments in the past. Applicants should be permitted to
explain the circumstances of those rulings and, on good showing, to
exclude such findings from consideration. A determination of "pattern"
should be based on the totality of the circumstances.

--Wendy

-- 
Wendy Seltzer -- wendy@xxxxxxxxxxx +1 914-374-0613
Fellow, Princeton Center for Information Technology Policy
Fellow, Berkman Center for Internet & Society at Harvard University
http://cyber.law.harvard.edu/seltzer.html